Fact finding allowed on appeal?

High Court: Should an appellate court make its own finding of fact only where the trial judge's finding of fact was "glaringly improbable" or "contrary to compelling inferences"? Whatever the answer is, it arguably applies to migration matters.

Summary

This is a High Court (HCA) decision on whether, and/or in what circumstances, a court of appeal should make findings of fact for itself.

Arguably, the answer also applies to appeals to the Federal Court and the High Court in the context of judicial review in immigration matters, although in those matters the facts are not usually in dispute.

BELL, GAGELER, NETTLE and EDELMAN JJ, with whom KIEFEL CJ agreed in a separate judgement, held as follows:

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