Can decision makers draw on their own experience?

Federal Court (Full Court): Can admin decision-makers make findings of fact solely by "[drawing] on their accumulated knowledge or experience in respect of particular countries"? Which of the following approaches is correct? A finding made with no evidence will only amount to jurisdictional error where: a) "the relevant finding is a precondition to the exercise of jurisdiction"; b) "the finding is a critical step in the ultimate conclusion of the decision-maker".

The Appellant's visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (character cancellation). The Appellant then made representations about whether the cancellation should be revoked pursuant to s 501CA(3).

As it was not in dispute that the Appellant failed the character test, the question to the Assistant Minister was whether there was "another reason" why the Assistant Minister should revoke the cancellation (see s 501CA(4)(b)(ii)).

To oversimplify the Appellant's representations, they centred on the explanation as to why he had committed the offences that led to his failure to satisfy the character test. The Appellant submitted that those offences were committed, in large part, by reason of his mental health issues.

Although the Appellant did raise in his representations that, if he were returned to Fiji, there would be no availability of appropriate treatment and medication in that country for his mental health issues, the Appellant did not place emphasis on that aspect of his submissions.

The Assistant Minister decided not to revoke the cancellation, pursuant to s 501CA(4). Partially as a result of the Appellant's lack of emphasis on his submissions on the availability of treatment in Fiji, that issue appears to "have played a relatively minor part in the totality of [the Assistant Minister's] decision", whose record included the following passages:

28.     I note that [the Appellant] suffers from depression and anxiety and takes medication for such. I consider that appropriate treatment and medication for this condition is likely to be available in Fiji, though I acknowledge that it may not be of the same standard as that available in Australia and it may be harder to obtain, as indicated by [the Appellant's cousin] in her letter.

30.     I accept that [the Appellant] may experience emotional hardship if he is removed from Australia and thereby separated from his children and partner. However, as a citizen of Fiji he will have access to government support service equal to that of other citizens of that country, though I acknowledge that these may not be of the same standard as available to him in Australia.

The Appellant subsequently applied to the Federal Court (FCA) for judicial review of the Assistant Minister's non-revocation decision, but a single judge of the FCA dismissed that application. The Appellant eventually appealed the FCA decision to the Full Court of the FCA (FCAFC).

The questions to the FCAFC were as follows:

Question 1: Can administrative decision-makers, in some circumstances, make findings of fact in the absence of evidence such as a finding that treatment and medication was likely to be available in Fiji and, if so, what are those circumstances? In other words, can those decision-makers "draw on their accumulated knowledge or experience in respect of particular countries"?

Question 2: If the answer to Question 1 is "yes", which of the two competing approaches should be adopted?

(a)    a finding made with no evidence will only amount to jurisdictional error where the relevant finding is a precondition to the exercise of jurisdiction; and

(b)    a finding made with no evidence will only amount to jurisdictional error where the finding is a critical step in the ultimate conclusion of the decision-maker.

Question 3: If the answer to Question 2 is "(a)", can it be said that the Assistant Minister's finding that "appropriate treatment and medication for this condition is likely to be available in Fijiwas "a precondition to the exercise of jurisdiction"?

If the answer to Question 2 is "(b)":

Question 4: Can it be said that the Assistant Minister's finding that "appropriate treatment and medication for this condition is likely to be available in Fijiwas a "critical step in the ultimate conclusion of the decision-maker"? We hereafter refer to that finding as "the relevant finding".

In answering Question 4:

Question 5: Can it be said that the "mere fact that the Assistant Minister determined that the relevant finding was sufficiently important to include in his reasons [signifies] that the finding was a fact critical to his ultimate decision"?

Question 6: Can it be said that the Appellant's lack of emphasis placed on the availability of appropriate treatment and medication in Fiji in the representations he made to the Assistant Minister contributed to the relevant finding not being "a fact critical to his ultimate decision"?

Question 7: Although the Appellant's representations did not expressly refer to the possibility of immediate homelessness if he were returned to Fiji, did that possibility arise squarely on the Appellant's representations, such that the Assistant Minister's failure to address that possibility amounted to jurisdictional error?

The FCAFC answered as follows:

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