‘Not open on the evidence’ is not the same as ‘no evidence’

The persistency with which these two separate jurisdictional errors continues to be conflated by the Minister deserves calling out.

Justice Perry did so in BMW16 v Minister for Immigration and Border Protection [2017] FCA 1036 at [23]:

A finding may taint a decision with jurisdictional error in cases where a particular finding is not open on the evidence, even though it cannot be said that there is no evidence on the point.

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