In Htun there was a distinction drawn between failure to consider an integer of a claim and ‘errant fact finding’.
What ‘errant fact finding’ is was described in SZRHL (2013) 136 ALD 641; [2013] FCA 1093:
[23] In the case mentioned in the passage cited from SZQRW, MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441 ; [2010] FCAFC 123, the Full Court observed that (at [83]):
[83] A distinction is to be drawn between the failure to deal with a claim (a constructive failure to exercise jurisdiction) and what has been described as errant fact-finding: HTUN v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 ; [2001] FCA 1802 at [42] per Allsop J; cited with approval by the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 ; 219 ALR 27 ; [2004] FCAFC 263 where the Full Court discussed extensively errors of fact and jurisdictional error in the Tribunal. In Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 ; [2010] FCAFC 51 at [28] North and Lander JJ observed that an error of fact based on a misunderstanding of evidence in considering an applicant’s claims is not jurisdictional error so long as the error does not mean that the Tribunal has not considered those claims.
[24] That there is a difference between a failure to deal with the claim as made for a protection visa and dealing with a claim as made but making a wrong finding of fact in the course of so doing may be accepted. The boundaries of that difference may be elusive where the fact concerned is an integral part of the claim as made. Further, as Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 ; 73 ALD 321 ; 77 ALJR 1088 ; [2003] HCA 26 (Dranichnikov) illustrates, exactly what constitutes the nature and scope of the claim as made for a protection visa may itself be a subject upon which reasonable minds might reasonably differ. That is an ever present risk in cases of this kind where so often the protection visa application will be authored on behalf of, if not by, a person whose first language is one other than English.
[25] Yet further, a conclusion that the claim as made has been dealt with and that the error is to be regarded as “errant fact finding” does not, in itself, mean that there can be no jurisdictional error. The end result of that errant fact-finding may yet be that the tribunal has conducted its “core function” of review in a way that is unreasonable in the sense described by Gageler J in Li (at [105]):
[105] “It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason.” Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.
[26] Correctly apprehending the claim as made for a protection visa but determining that claim in a way that is so unreasonable that no reasonable person could so have dealt with it is just as much a failure to exercise a review jurisdiction according to law as not dealing with the claim as made. Even where an administrator has provided reasons which disclose an “evident and intelligible justification” (compare Liat [76] per Hayne, Kiefel and Bell JJ) for a decision those reasons may be intelligible only in the sense of making evident an illogical or irrational process of reasoning to an ultimate conclusion of fact.