Much to the frustration of many clients, fact finding by the AAT is not normally able to be challenged in judicial review proceedings in the courts. One very limited exception to that proposition is if the fact finding is “irrational, illogical and not based on findings or inferences of fact supported by logical grounds”. Those grounds are very difficult to make out. There are at least two additional matters which have to be considered:

  1. it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions. So, if different reasonable people could have come to a different finding then the fact finding is not “illogical”; and
  2. the error has to be “material” to the decision made. So, if the same decision would have been made even if the error hadn’t occurred then there is no jurisdictional error.

Some of the authorities on those two points are conveniently summarised in Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 at paragraphs [59] and following.

The issue in Gill was whether Mr Gill had provided a bogus work reference about his experience as a cook. The Full Court found there was a clear communication error between the Applicant and the Tribunal and it was “illogical” for the Tribunal to make credibility findings based on that misunderstanding. The error was that the Applicant was talking about “rissoles” while the Tribunal thought he was talking about “risotto” (see [69] and following). It is little wonder that the Tribunal couldn’t comprehend why rice and flour were being used to make risotto. It is also apparent that that this misunderstanding was relevant to whether the Tribunal believed the Applicant had skills as a cook.

This is a very unusual case and is an example of the circumstances in which fact finding can be found to be illogical.


Creative commons acknowledgment for the photograph.

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