Thread by @dougmcdnor, Government officials make decisions. Those decisions rely on findings of fact. What [...]

Government officials make decisions. Those decisions rely on findings of fact. What if those findings of fact are illogical or irrational? How does that affect the official’s ultimate decision? Let’s take 25 tweets to find out! 1/

Traditionally, Australian judges and lawyers have spoken of a division between ‘merits review’ and ‘judicial review’. A decision is not unlawful just because a judge could, or would, have reached a different conclusion on the same evidence. 2/

And a decision can’t be overturned by a court simply because an official’s findings are harsh or uncharitable. The law gives a wide discretion to officials to make findings. Judicial review for illogicality or irrationality requires a much higher threshold. 3/

The test was identified by Crennan and Bell JJ in MIAC v SZMDS [2010] HCA 16: that irrationality or illogicality can potentially give rise to jurisdictional error if the relevant finding ‘is one at which no rational or logical decision-maker could arrive on the same evidence’. 4/

This can include, for example, where there is no logical connection between the evidence and the inferences or conclusions drawn. (See SZMDS at [130]-[135].) 5/
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2010/16.html">https://www.austlii.edu.au/cgi-bin/v...

This can include, for example, where there is no logical connection between the evidence and the inferences or conclusions drawn. 6/

There’s a red piece of paper in front of a decision-maker. The law lets them call it crimson or maroon or scarlet - even if a judge might have called it ruby, or even vermilion. 7/

Illogicality or irrationality is not concerned with legitimate differences of opinion. The courts will only intervene when the decision-maker calls the piece of paper blue. 8/

In recent years, courts have often described illogical or irrational findings as based upon ‘unfounded or unwarranted assumptions’. Take, for example, the case of BZD17 v MIBP [2018] FCAFC 94. 9/
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2018/94.html">https://www.austlii.edu.au/cgi-bin/v...

The appellant claimed to fear harm in Cameroon because of his sexual orientation. The Tribunal did not accept that he was gay, or that he had provided a credible account of his experiences in Cameroon. 10/

He said that his first sexual experience had been with a boy in his school’s bathroom. The Tribunal did not accept this claim because it found that ‘it would be unusual for a teacher to allow two students to leave the classroom at the same time to go to the toilet’. 11/

The Full Court described this as a ‘curious and unfounded assumption’. Wild speculation and conjecture of this kind cannot provide a logical and rational basis for the rejection of an applicant’s credibility. 12/

But just because a decision contains illogical or irrational reasoning does not mean that it is affected by jurisdictional error. 13/

Suppose, for example, a decision-maker decides that an applicant is not telling the truth for five reasons. One of those reasons is illogical or irrational - it is not an inference that a rational decision-maker could draw from the evidence. 14/

Does that mean that the whole decision is illogical or irrational? And does that mean that it is affected by jurisdictional error - that is, beyond the power of the decision-maker to make? 15/

For an error to be a jurisdictional error, it must be a material error. That means that a person challenging the decision must establish that, if the error had not occurred, there is a realistic possibility that another decision could have been made. 16/

(My next Twitter thread is on materiality!) 17/

Let’s go back - what if an applicant is found not to be telling the truth for five reasons? If the other four reasons provided a genuinely independent basis for the decision-maker’s conclusion, it may be that the fifth reason made no difference to the ultimate conclusion. 18/

If so, even though the decision-maker made illogical or irrational findings, their error might not be material to the end result - that is, it wouldn’t have made a difference if the error hadn’t occurred. And hence it will not amount to jurisdictional error. 19/

But how this works will always depend on the circumstances of each individual case. What matters is how a decision-maker used those findings - not whether a court might have reached the same result anyway. 20/

The question isn’t whether a decision-maker’s other findings COULD have supported its eventual decision. The question is whether they actually DID. The question is how the findings were used, not what might have been done with them in a vacuum. 21/

If a decision-maker relies on the cumulative weight of ALL of their adverse findings, flaws infecting some but not all of those findings may still be material. If you remove the foundations from a tower, you don’t have to pull out all of the bricks before the tower collapses. 22/

If a decision-maker strongly disbelieves an applicant on one issue, that might affect how they weigh the applicant’s other evidence - for example, by detecting a ‘trend’ of inconsistencies or implausibilities which may not have actually existed. 23/

Illogicality or irrationality doesn’t permit a court to play decision-maker. But when a court looks to see if an error is ‘material’, that does not provide a licence to disentangle cumulative findings or embark on a decision-maker’s weighing process for itself. 24/

A decision-maker makes a decision. The courts can only go so far to rewrite it, regardless of whether a citizen or the state asks them to do so. End of thread. 25/25

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