There are only very limited grounds on which fact finding can be challenged on a judicial review application. This is highlighted by MZZGE v Minister for
Home Affairs [2019] FCAFC 72. In that case, the Applicant (pregnant with a second child) said she would be forced to have an abortion and be sterilised if returned to China. It was also claimed she would face various societal pressures in their hometown in Fujian province including because their daughter would be considered ‘early born’ and a ‘black child’, resulting in no entitlements to social benefits or welfare.
Although it was factually accepted that forced sterilisations do occur, the Tribunal found there was insufficient evidence to show this was a risk to the Applicant. The Applicant’s argument was that this conclusion was irrational. Unfortunately, for a factual decision to be a jurisdictional error, you have to show:
- no rational or logical decision-maker could have arrived at the decision on the same evidence; or
- there is no logical connection between the evidence and the inferences drawn; or
- there is an irrational or illogical step in reasoning, at least where that faulty step can be shown to have affected a material conclusion.
The appeal was unsuccessful. Interestingly, the Applicant did not argue any ground of appeal that the Tribunal had misunderstood the “real chance” test (an important concept in the law of protection visas). Perhaps she should have?
Creative commons acknowledgment for the photograph.
