An Eye Keenly Attuned To Error
Regularly DIAC, in opposing judicial review warns that tribunal decisions should not be scrutinised with ‘an eye keenly attuned to error’. The term, ‘an eye keenly attuned to error’ is usually attributed to the words of Brennan CJ, Toohey, Mchugh and Gummow JJ in the High Court decision of MIEA v Wu Shan Liang  HCA 6; (1996) 185 CLR 259 (27 May 1996).
In fact the quote originates from a Full Federal Court decision of Collector of Customs v Pressure Tankers and Pozzolanic  FCA 322; (1993) 115 ALR 1 (1993) 18 AAR 9 (1993) 43 FCR 280 (9 July 1993) (‘Pozzolanic’). It is useful to set out the full context of the quote in the joint decision of Neaves, French and Cooper JJ (paragraph 23):
….The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal’s thoughts – Lennell v. Repatriation Commission (1982) 4 ALN N.54 (Northrop & Sheppard JJ); Freeman v. Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156 at 164 (Sheppard J); Repatriation Commission v. Bushell  FCA 185; (1991) 13 AAR 176 at 183 (Morling & Neaves JJ). The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error – Politis v. FCT (1988) 16 ALD 707 at 708 (Lockhart J). [emphasis added]
- The principles according to which the jurisdiction conferred by s.44 is limited are not always easy of application. Distinctions between a question of fact and a question of law can be elusive. The proper interpretation, construction and application of a statute to a given case raise issues which may be or involve questions of fact or law or mixed fact and law. Nevertheless there are five general propositions which emerge from the cases:
- The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law – Jedko Game v Collector of Customs (1987) 12 ALD 491; Brutus v Cozens  UKHL 6; (1973) AC 854.
2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact – Jedko Game v Collector of Customs (supra); NSW Associated Blue Metal Quarries v FCT  HCA 80; (1956) 94 CLR 509 at 512; Life Insurance Co of Aust Ltd v Phillips  HCA 18; (1925) 36 CLR 60 at 78; Neal v Dept of Transport (1980) 29 ALR 350 at 361-2.
3. The meaning of a technical legal term is a question of law. AGL v Valuer General (1940) 40 SR(NSW) 126 at 137-8; Lombardo v FCT  FCA 66; (1979) 28 ALR 574 at 581.
4. The effect or construction of a term whose meaning or interpretation is established is a question of law – Life Insurance Co of Aust v. Phillips (supra) at 79.
5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law – Hope v. Bathurst City Council  HCA 16; (1980) 144 CLR 1 at 7 per Mason J with whom
Gibbs, Stephen, Murphy & Aickin JJ agreed; ANR v Collector of Customs
(supra) at 379 (Sheppard & Burchett JJ).
In Wu Shan Liang the High Court referred to Pozzolanic and stated:
30…..In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision-maker.
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.
Going back to Pozzolanic, propositions 3, 4 and 5, do give the Courts in judicial review considerable scope for looking at what a tribunal has done in the process of making a decision. Any number of terms in the Migration Act and Regulations is a ‘technical legal term’. As such a Court can then look at the factual findings to determine if, on the facts as found, the tribunal correctly applied those facts to the law, the law being the technical definition of the term.
The judicial warning not to scrutinise tribunal decisions with ‘an eye keenly attuned to error’, is not the mantra DIAC often makes it out to be.