Overturning findings of fact on appeal11/7/2023 The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor.įactual errors or errors in a credibility finding do not fit easily into a category of jurisdictional error. The High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs HCA 63 at, (2006) 228 CLR 152 warned of this possibility when Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said : The structural difficulty that the MRT/RRT model of merit review in migration law (now embodied in the Administrative Appeals Tribunal) being inquisitorial is a temptation on the part of a tribunal member to drift into being the prosecutor. The difficulties confronting any party who seeks to upset findings founded upon an assessment of the credibility of witnesses cannot, accordingly, be under-estimated In this regard the observations of Flick J are apposite : This paper looks at the circumstances when a serious error of fact or a serious error in making a finding of credibility can amount to jurisdictional error. However, it left intact the notion that a tribunal could make an error ‘within jurisdiction’. The effect of the privative clause contained in s 474 of the Migration Act was gutted in S157 with the High Court entrenching the notion of jurisdictional error being that a decision infected with ‘jurisdictional error’ is ‘ no decision at all”. The setting up of a merit review process for the bulk of migration decisions, was equally important and beneficial.īut of course that merit review process miscarries if the tribunal makes an error. I would say also that it was innovative because it conferred a function of merits review upon a body that was expected to have expertise in the process of review itself, as distinct from expertise in one particular subject of decision-making. It was innovative because it was to have a wide-ranging jurisdiction extending beyond specific areas within the purview, and control, of separate Departments. The establishment of the Administrative Appeals Tribunal in 1976 was described by Sir Anthony Mason, a member of the Commonwealth Administrative Review Committee which recommended that it be set up, as the most innovative and controversial element of a group of proposals designed to promote the rule of law and good governance by enabling citizens to call in question administrative decisions. It was controversial because the tribunal was to review decisions “on the merits of questions of fact and law”, because such review could extend to questions of policy, and because the judicial method was adopted as a model for the Tribunal’s decision-making. Thirty years after the establishment of the Federal Administrative Appeals Tribunal, then High Court Chief Justice, speaking extra-judicially said that universal merit review promoted the rule of law and good governance : Some of those pathways are not explored like the inadequacy of the reasons for decision, that is a topic for another occasion. The purpose of this paper is to demonstrate that there are some pathways to challenging adverse credibility findings or wrong factual findings by way of judicial review. It is not within the scope of this paper to undertake a full survey of all the decisions where credibility issues and/or factual findings are discussed at the judicial review stage. It looks at some of the circumstances when a court will find jurisdictional error on the basis of a wrong adverse factual or credibility finding by the merit review tribunal or the primary decision maker. This paper was presented at the Law Council of Australia’s Immigration Law Conference in March 2016. Tribunals and primary decision makers are not immune from judicial review when adverse findings are factual and/or based on credibility.īut the task of seeking judicial review in such circumstances is not easy and the hurdles are high.
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