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No Evidence
S5 Applications for review of decisions (1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the follow grounds (f) that the decision involved an error of law, whether or not the error appears on the record of the decision (h) that there was no evidence or other material to justify the making of the decision (3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

MAIN ISSUE: Was the decision made in the absence of evidence?

1. Principle Where the decision maker is under an obligation to decide on facts, the decision must be based upon evidence such that a complete absence of evidence is an error of law 2. At Common Law English Approach Mere insufficiency of evidence for finding a fact can amount to legal error (SSES v Tameside) Australian Approach Legal error arises where there is a total absence of evidence to satisfy an essential element of the decision, i.e. the decision is invalid (APC v Sellick, Bennett J) Absence of unimportant facts will not be enough to make out this ground (Workers Compensation v Smith)

3. [NOTE] Negative finding No evidence ground is not available where the finding is a negative one (Sunchen, Perram J) Reason: Decision make can simply reject the evidence as not credible

Issue: Is the no evidence ground made out under s 5(1)(f)?

1. ADJR Act s 5(1)(f) S 5(1)(f) embraces the no evidence ground at CL (ABT v Bond, Mason CJ) Excludes a mere lack of evidence as distinct from a complete absence of evidence (ABT v Bond, Mason CJ)

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Issue: Is the no evidence ground made out under s 5(1)(h)?

1. ADJR Act s 5(1)(h) __(Plaintiff)__ can apply to the court that that there was no evidence or other material to justify the making of the decision (s 5(1)(h)) S 5(1)(h) expands the no evidence ground at CL but in limited situations (ABT v Bond, Mason CJ) Only available where there is an ADJR challenge S 5(1)(h)is elucidated in s 5(3) (ABT v Bond, Mason CJ) NB: There may be overlap between ss 5(3)(a) and (b) (Rajamanikkam, Gaudron and McHugh JJ)

Issue: Is s 5(3)(a) applicable? If yes, is it satisfied?

1. S 5(3)(a) s 5(3)(a) applies to legislation which expressly or impliedly provides that making of decision (i) depends upon the establishment of matter; and (ii) there is no evidence on which the decision-maker can be reasonably satisfied that the matter was established (s 5(3)(a); Western Television, Pincus J) 2. Establishment of a particular matter S 5(3)(a) restricts the no evidence ground to [cases where] decision maker was required by law to reach that decision only if a particular matter was established (ABT v Bond, Mason CJ) The establishment of a particular fact must be a precondition in law to the decision (TV Capricornia v ABT, Wilcox J) It is not enough that the fact was a matter of consideration even if it was a very important matter (TV Capricornia, Wilcox J) Examples Tribunal was not required in law to reach any conclusion on the question of shareholding stability of the applicant NO (Western Television, Pincus J) The financial capability of a proposed licensee was not as a matter of law a necessary precondition to a decision to grant the licence NO (TV Capricornia, Wilcox J) The Act did not require a finding of the fact that no rough estimate had been obtained NO (Sunchen)

3. No evidence from which the decision maker could reasonably be satisfied Enough to show an absence of evidence/material with respect to the particular matter (ABT v Bond, Mason CJ) I.e. there is no probative evidence to support the finding of fact (ABT v Bond, Mason CJ) Overcomes to a limited extent and in a limited area the restrictions on the traditional no evidence ground which requires total absence of evidence (ABT v Bond, Mason CJ; APC v Sellick, Bennett J) 4. CONCLUSION Page 2 of 9

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Issue: Is s 5(3)(b) applicable? If yes, is it satisfied?

1. S 5(3)(b) S 5(3)(b) applies where the decision maker based the decision on the existence of a particular fact, and that fact did not exist. Plaintiff bears the onus of proof in showing the requirements of s 5(3)(b) (Sunchen, Perram J) 2. Identify a particular fact particular in s 5(3)(b) refers to a finding of fact without which the decision in question either could not or would not have been reached (Rajamanikkam, Gaudron and McHugh JJ) NOT particular fact Expressions of opinion (ARA v Reserve Bank) Observations or comments about evidence (DAPQ v Aust Pork) Findings, assumptions or predictions (DAPQ v Aust Pork) Only reflect particular facts but are not particular facts in themselves

3. Decision must be based on the particular fact Decision is based on the particular fact if that fact is critical to the making of the decision (ABT v Bond, Mason CJ; Rajamanikkam, Gaudron and McHugh JJ; Curragh, Black CJ) Apply but for test (Rajamanikkam, Gaudron and McHugh JJ (court agreeing)) Would the decision have been reached had the particular fact not been made? Multiple facts No need to identify a single particular fact said to be the foundation of the decision (Curragh, Black CJ) Decision may be based on many particular facts such that each particular fact that is critical to the decision (Curragh, Black CJ) A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel
links, may be just as critical to the decision

Decision can be based on concurrent factors (Workers Compensation v Smith)

4. The fact did not exist __(Plaintiff)__ must actually negative the fact on which the decision was based (ARA v Reserve Bank) Meeting this requirement is extremely difficult (ARA v Reserve Bank) __(Plaintiff)__ must adduce evidence positively establishing contrary to the fact (ARA v Reserve Bank) __(Plaintiff)__ can use new evidence not limited to material before the decision maker to establish that a particular fact did not exist (Curragh, Black CJ) To accept some evidence and reject other evidence does not amount to an error of law (Curragh, Black CJ) 5. CONCLUSION

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Issue: After proving s 5(3)(a) / s 5(3)(b), must s 5(1)(h) be satisfied?

1. s 5(3)(a) unclear Q whether __(Plaintiff)__ must also satisfy s 5(1)(h) after satisfying s 5(3)(a) has not been authoritatively determined (Dunstan v Orr) When the negative deeming in s 5(3) is not enlivened, the question raised by s 5(1)(h) still needs to be answered (Sunchen court read down Kirby Js view in Rajamanikkam) 2. s 5(3)(b) must satisfy s 5(1)(h) It is not enough to satisfy s 5(3)(b) alone; __(Plaintiff)__ must also satisfy s 5(1)(h) (Rajamanikkam, Gleeson CJ and Callinan J affirmed in Dunstan v Orr citing SGFB) Cf majority who held that s 5(1)(h) is automatically satisfied upon satisfying s 5(3)(b) (Rajamanikkam, Gaudron, McHugh and Kirby JJ) S 5(3)(b) is not a qualification but is a statement of content of s 5(1)(h) When the negative deeming in s 5(3) is not enlivened, the question raised by s 5(1)(h) still needs to be answered (Sunchen court read down Kirby Js view in Rajamanikkam) __(Plaintiff)__ must show that there was no evidence or other material to justify the making of the decision (Dunstan v Orr)

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Cases Common Law English Approach

Coleen Properties Ltd v Minister of Housing and Local Government [1971] 1 WLR 433 YES Facts: Re local authoritys inclusion of a modern building in a compulsory purchase of dilapidated one Held: Invalid on basis that no evidence that building was within statutory criteria for reasonably necessary for the satisfactory development and use of the cleared area. No evidence that this building was required in the acquisition Secretary for State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 YES Facts: Secretary of State told local education authority not to proceed in a certain way. Secretary can only so instruct if education authority was acting unreasonably (statutory standard) Held: No sufficient factual basis for believing that authoritys proposed action will lead to educational chaos or that education authority was acting unreasonably

Common Law Australian Approach

ABT v Bond (1990) 170 CLR 321 Facts: The Broadcasting Act conferred power on the ABT to conduct inquiry into whether the holder of a commercial broadcasting licence was a fit and proper person to hold the licence, and if not, whether the licence should be revoked, suspended or have conditions imposed upon it. B had shareholdings in a number of companies and was able to determine the composition of the BOD of companies that were the holders of commercial broadcasting licences in Qld. Inquiry conducted as to whether B was a fit and proper person to hold the licence: - 1. a comment was made by B in an interview, that to do biz successfully in Qld, he had made a generous financial settlement of an unresolved defamation action by the Qld Premier that was pending against the licensee of a television station at the time B acquired it - 2. an allegation was made that B had threatened to use his television station to broadcast damaging information about a biz competitor. During its investigation, ABT published a statement that concluded the allegations against B were proved and B gave misleading evidence to the tribunal and therefore not a fit and proper person to hold a licence and that it would decide whether to take action. B then commenced proceedings. HC Held: Mason CJ In general, the concept of error of law in s 5(1)(f) is intended to reflect the content of that expression as it was understood at common law Effect of s 5(3) is to limit severely the area of operation of the ground of review in s 5(1)(h) S 5(3)(a) restricts the no evidence ground to decisions in respect of which the decision maker was required by law to reach that decision only if a particular matter was established - In such a case, the ground of review is that there was "no evidence or other material ... from which he could reasonably be satisfied that the matter was established". - Enough to show an absence of evidence/material from which the decision maker could reasonably be satisfied that the particular matter was established lesser burden than showing an absence of evidence/material to support the decision - Ss 5(h) and (3)(a) have the effect of overcoming to a limited extent and in a limited area the restrictions on the traditional no evidence ground S 5(3) tells against an expansive interpretation of s 5(1)(f) Might be argued that s 5(1)(h)and (3) that they constitute a definitive and exhaustive statement of the "no evidence" ground of review for the purpose of s 5, thereby excluding such a ground from the concept of "error of law" in s 5(1)(f). - However, such a result would verge upon the extreme and would pay scant attention to the traditional common law principle that an absence of evidence to sustain a finding or inference of fact gives rise to an error of law. Better view, is to treat "error of law" in s 5(1)(f) as embracing the "no evidence" ground as it was accepted and applied in Australia before the enactment of the ADJR Act and to treat the "no

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evidence" ground in s 5(1)(h), as elucidated in s.5(3), as expanding that ground of review in the applications for which pars (a) and (b) of s 5(3) make provision. Error of law within s 5(1)(f) could not include a mere lack of evidence as distinct from a complete absence of evidence (WT v ABT) Pre-existing CL ground of no evidence was housed in the general ground of ADJR s 5(1)(f) re: error of law. S 5(1)(h) was an additional statutory criteria of no evidence; and the limiting stipulations in s 5(3) will only to expand and limit the old general idea. insufficiency of evidence was never a rule adopted in Australia. Findings of fact and inferences of fact are not reviewable under the ADJR Act unless jurisdiction is enlivened by the review of a decision or conduct. - Findings of fact will be reviewable if there is no evidence to support it - Inferences will be reviewable on the ground that it was not reasonably open on the facts which amounts to the same thing

APC v Sellick [2008] FCA 236 Held: Bennett J A decision made under the Act is invalid if there is a total absence of evidence to satisfy an essential element of the decision. The question whether there is any evidence of a particular fact is a question of law Failure to advert to the content of submissions does not necessarily mean that the matter was not considered If the particular submission did not go to the substance of the decision or would not have affected the outcome, failure to advert to it in the reasons does not mean that the matter was not considered and does not give rise to error of law. Workers Compensation v Smith [2010] NSWCA 19 Held: Basten JA (Allsop P and Handley AJA agreeing) Absence of unimportant facts will not be enough Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 Facts: Relevant fact in dispute was whether the building had actually served extension claim notices on the owners of the property such that the owners had no right to terminate for delay Held: Hayne, Heydon, Crennan and Kiefel JJ Whether there was no evidence to support a factual finding is a Q of law, not a question of fact There was no evidence before the Tribunal, when it decided the separate question identified by the parties, upon which the Tribunal could find that the disputed notices had been served

Statute
HABIB v MFAT [2010] FCA 1203 Held: S 5(3)(a) is directed to the need to identify a particular matter required by law to be established to reach the decision under review S 3(b) is directed to the proof of the non-existence of a fact critical to the making of a decision

1st Limb
ABT v Bond (1990) 170 CLR 321 Held: There will be a discernible breach of duty if a decision of fact is unsupported by probative material There will be a discernible breach of duty if a findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact A finding of fact will then be reviewable on the ground that there is no probative evidence to support it and an inference will be reviewable on the ground that it was not reasonably open on the facts, which amounts to the same thing.

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Western Television Ltd v ABT (1986) 12 FCR 414 Held: Pincus J This limb relates to legislation which expressly or impliedly provides that making of decision (a) depends upon the establishment of matter (b), and there is no evidence on which the decisionmaker can be reasonably satisfied that the matter was established S 5(3)(a) does not apply because no law requires the Tribunal to reach any conclusion on the question of shareholding stability - Tribunals power, express or implicit, does not include punishing applicants thought not to have sufficient shareholding stability by holding them less suitable to receive a grant than others A narrower reading, which makes more practical sense, is that s 5(3)(b) refers only to instances in which express findings made are plainly incorrect. Neither ss 5(3)(a) or (b) applies here TV Capricornia Pty Ltd v ABT (1986) 70 ALR 147 Held: Wilcox J This limb applies only where the establishment of a particular fact is a precondition in law to the decision Although the financial capability of a proposed licensee is a matter for consideration, and no doubt would usually be regarded by the Tribunal as a very important matter, a finding that a particular proposed licensee has the financial capability to provide an adequate and comprehensive service is not, as a matter of law, a necessary precondition to a decision to grant a licence to that person Sunchen v Commissioner of Taxation [2010] FCA 21 Held: - The first limb did not apply because the Act did not require a finding of the fact i.e. no rough estimate had been obtained

2nd Limb
ABT v Bond (1990) 170 CLR 321 Held: Mason CJ s 5(3)(b) was directed to proof of the non-existence of a fact critical to the making of the decision MIMA v Rajamanikkam (2002) 210 CLR 222 Facts: Re Migration Act provisions that were replicated ADJR provisions re this ground (identical) Sri Lankan nationals had applied for protection visas for fear of persecution in their own country. RRT had identified 8 factors which it said when considered together, led it to conclude that the claims of the applicants were concocted. 2 of these factors however, were lies, wrongly attributed to the applicant i.e. facts did not exist. Held (4-1): rejected the challenge Gleeson CJ: tribunal had identified an alternate reasoning to reject the application. Gaudron & McHugh JJ: given the range of factors that were raised about the applicants credibility, it is not possible to say that the decision is based upon only the 2 wrong facts. - this seemed to suggested something close to a but for test. Kirby J dissented: Credibility was critical to the application for protection visa. Further, tribunal had said that it was the 8 factors operating together and the number of difficulties with the applicants evidence that led to the doubts about credibility. To then conclude that the decision was not based upon the 2 factors would then lead to the court performing its own analysis in order to substitute its own version of the facts Majority held that the second limb restriction was not a qualification of (1)(h), but a statement of its content and therefore, not a cumulative statement on top of (h). Gaudron, McHugh and Kirby JJ: you have automatically satisfied (h) upon satisfying this limb. Gleeson CJ and Callinan J: required a separate satisfaction of paragraph (h). - Gleeson CJ: It is not enough to satisfy s 5(3)(b) alone. To do so would ignore s 5(1)(h). Satisfaction of ss 5(3)(a) or (b), while necessary is not sufficient - Note: the lower courts seem to take this view.

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Gaudron and McHugh JJ (Kirby J, Callinan J and Gleeson CJ agreeing): affirmed but for approach as to whether a particular fact was critical to making the decision - Confinement of s 5(3)(b) to cases where the particular fact in question is critical to the decision - critical in s 5(3)(a) refers to a finding as to a matter which is required to be established before the decision in issue can be reached - particular indicates that s 5(3)(b) is intended to have a more limited operation - refers to a finding of fact without which the decision in question either could not or would not have been reached - There may be some overlap between ss 5(3)(a) and (b) - S 5(3)(a) imposes a less stringent test

Dunstan v Orr [2008] FCA 31 Held: Q: Whether s 5(1)(h) is made out if one of the matters in s 5(3) is established, or the ground in s 5(1)(h) is made out only if there was no evidence or other material to justify the making of the decision and one of the matters in s 5(3) is established SGFB - A party seeking to make out the ground in s 5(1)(h) by establishing that the decision-maker based his decision on the existence of a particular fact and that fact did not exist must also establish that there was no evidence or other material to justify the making of the decision. Here, the applicant seeks to make out s 5(1)(h) by reference to s 5(3)(a). The question whether s 5(1)(h) is made out only if he establishes s 5(3)(a) and that there was no evidence/material to justify the decision or whether he does so simply by establishing s 5(3)(a)] has not been authoritatively determined - No need to resolve this difficult question Here, even s 5(3)(a) was not made out Curragh Qld Mining v Daniel (1992) 34 FCR 212 Facts: Black CJ Applicant had imported mining equipment in order to meet obligations under contract Import tariff applied, but concession available where according to statute, no suitable local manufactured mining equipment reasonably available Applicant applied for concession on basis that local equipment was not capable of extracting quantities required His application was rejected on basis that applicant could have arranged terms of contract in a manner that can meet obligations using local equipment Held:

S 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision. A decision may be based upon the existence of many particular facts; it will be based on the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion. S 5(3)(b) must contemplate that an applicant will be able to establish that a particular fact did not exist, and that the applicant will be able to do so in circumstances where there was an absence of evidence or other material before the decision-maker to justify the making of the decision. It could hardly have been intended that an order of review would be available only where the non-existence of the particular fact could be established from the material before the decision-maker s 5(3)(b) will be based on a particular fact where that finding is critical to the making of the decision i.e. this is more or less a but for approach that was suggested in Rajamanikkam. - Party negativing the fact can use new evidence to do so, they are not limited to evidence before the decision maker.

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Workers Compensation v Smith [2010] NSWCA 19 Facts: Walker argued that the Minister was bound to consider public interest Held: adopted Curragh To accept some evidence and to reject other evidence could, at best, amount to a wrong finding of fact which does not constitute an error in point of law What in fact was done amounted to the subdivision of issues into component parts, the appellant in effect arguing that each part constituted a link in a chain, so that if evidence to support any particular inference were missing, there would be no evidence to support the ultimate conclusion. - Here, the question of causation was inherently based upon a number of concurrent factors, each incorporating a significant level of uncertainty. An ultimate finding of causation may be based on a number of inferences drawn from primary facts, which may cumulatively allow the ultimate finding to be made. a logically reasoned inference of material contribution based upon the available expert evidence betrays no error Sunchen v Commissioner of Taxation [2010] FCA 21 Facts: Involved a tax dispute over property AAT found that the tax payer didnt have a rough estimate of the redevelopment costs at the relevant time and this was important in deciding how property would be treated for tax purposes. It was agreed that the tribunal had got their decision wrong, but the tax payer argued that there was no evidence for the finding and ran both under ADJR and CL no evidence ground Held: Perram J It is the taxpayer who bears the onus of proof in showing requirements of s 5(3)(b) Here, the taxpayer had to prove a negative and not a positive - Tribunal had concluded that taxpayer had failed to discharge the burden of proving that the premises would be used for property development Taxpayer failed to show that it was a critical fact Further, s 5(1)(h) was not made out here, even if s 5(3)(b) was, as there was other evidence to justify the decision i.e. there was other evidence that the redevelopment might not proceed. Failure to satisfy either of s 5(3)(a) or (b) necessarily spells failure under s 5(1)(h); however, the converse is not true Ss 5(3)(a) or (b) is satisfied as a matter of text merely prevents the negative deeming provided for in s 5(3) from coming into effect. When the negative deeming in s 5(3) is not enlivened, the question raised by s 5(1)(h) still needs to be answered: - In doing so, the court once again dodged Raja and read down Kirby Js view again. Where a negative finding that something is not the fact is involved. If there exists evidence which contradicts that negative finding that is, suggests that something is the fact it remains rationally possible for the decision maker to arrive at the same conclusion simply by rejecting that evidence as not credible. - For this reason, the no evidence ground should not be available where the finding challenged is in substance a negative one. Aust Retailers Association v Reserve Bank (2005) 228 ALR 28 Held: The last element of s 5(3)(b) requires the applicant to actually negative the fact on which the decision was based. It requires the applicant to adduce evidence positively establishing the contrary to the "fact" that it is alleged the decision-maker based its decision on, and in respect of which it is claimed there is no supporting evidence or other material - Meeting this is extremely difficult - The mere absence of evidence as to a fact will not establish its non-existence. - This confirmed the Rajamanikkam case and there was implicit confirmation that it is actually necessary to negative the relevant fact under s 5(3)(b) A further limitation upon the operation of the "no evidence" ground of review in s 5(1)(h) is that it must be confined to findings of fact, and does not extend to expressions of opinion. Director of Animal and Plant Quarantine v Aust Pork (2005) 224 ALR 103 Held: Observations or comments about the evidence are not particular facts. Findings, assumptions or predictions reflect particular facts. They are not particular facts in themselves.

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