Case: WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87
Outcome: considered
Bond's Case , Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002; Applicant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30 ; (2003) 77 ALJR 1165 has, materially, been decided. The implications of the judgments delivered in that case in relation to the judicial review of fact finding form the centrepiece of a valuable discussion by Aronson M, Dyer B, Groves M in their work, Judicial Review of Administrative Action (4 th ed, Law Book Co, 2009) ( Judicial Review of Administrative Action ) at p 265 et seq on the subject "Challenging seriously irrational or illogical fact finding". While the whole of that discussion repays study in the present context, the following passage (at pp 271-273) is, in my opinion, particularly apposite: Lee J dissented as to the result in WAHP v Minister for Immigration and Multicultural and Indigenous Affairs, but his Honour's statement of the relevant principles was not affected: 'The [Refugee Review] Tribunal obtains power to make a determination under the Act where the determination is based on findings or inferences of fact that are grounded upon probative material and logical grounds. A determination that is based on illogical or irrational findings or inferences of fact may be shown to have no better foundation than an arbitrary decision and accordingly the review process will be unfair and will not have been conducted according to law. Here, of course, the words "irrational" or 'illogical' are used with their proper meaning of devoid of, or contrary to, logic; or ignorant or negligent of, and not in conformity with, the laws of correct reasoning, and are analogues of arbitrary or perverse. They are not sued with a lesser colloquial meaning that may be applied where the words are introduced in debate to emphasise the degree of dissent from a disputed conclusion or point of view. Illogical or irrational findings or inferences of fact upon which a determination is based examinable as part of the matter that is subject to judicial review pursuant to the application for a prerogative or constitutional writ.' The Federal Court accepts that whether a decision is sufficiently irrational to meet S20's standard 'will, in our view, always be a matter of degree", but it rejects the English approach to Wednesbury , which sets a more demanding standard of reasonableness where import human rights are at stake. Allsop J gave the following summary: 'There may be circumstances where the findings of fact are so irrational or capricious as to display a failure of the Tribunal to attend conscientiously and appropriately to its statutory obligations.' [4.435] A real question now arises as to whether the courts will or should continue to stretch the procedural fairness rule of natural justice to accommodate a complaint that the decision-maker has made a serious factual mistake. It might be helpful to explore that question in the context of the House of Lords decision in R v Criminal Injuries Compensation Board; Ex parte A . The board had disbelieved the applicant's story, without hearing directly from her or at all from the police doctor who had examined her. The police had encouraged the applicant to adopt a passive role, on the assurance that they would do everything necessary at the board hearing. However, the police grossly misrepresented the doctor's report, innocently as the House was prepared to assume. With no blame attaching to the board, their Lordships granted review on either of tow bases, namely, fundamental error of fact and breach of natural justice. Natural justice was their preferred ground, but Ex parte A has since been endorsed for its recognition of fact review. If the English position does indeed allow review for fundamental error of fact, it goes considerably further than S20 , because such error can occur without procedural unfairness, irrationally or illogicalilty. We doubt that Australian common law will go that far. The High Court has doubted Ex Parte A's reasoning, at least so far as it was based upon natural justice, and quite possibly on the "error of fact" basis as well. The High Court suggested that Ex Parte A might be better analysed as involving a procedural error on the part of the police, thereby attracting review under ADJR's "procedural error" ground where ADJR applies. [Footnote references omitted] Like the learned authors of Judicial Review of Administrative Action , I conceive that the passage quoted from the judgment of Lee J in WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87 contains an accurate statement of relevant Australian principle in light of S20/2002 .