Can decision-makers use common knowledge?

Federal Court (Full Court). In deciding not to revoke under s 501CA(4) the mandatory cancellation of Appellant's visa, Minister found that, in American Samoa and Samoa: English was widely spoken; Appellant and his family would have access to health and welfare services. Could Minister base those findings on common knowledge? Were they so based? Does the materiality test involve a court asking itself whether, in the absence of the error in question, the administrative decision-maker would have made a different decision? In the context of s 501CA(4), does the materiality test involve a balancing or a binary exercise?

Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:

Question 1: Is the absence, in the Minister's decision record, of any reference to any personal or specialised knowledge of the Minister to support the above findings, although not conclusive, suggestive that Minister did not have such knowledge?

Question 2: Were the Minister's finding common knowledge?

If the answer to Question 2 is "no":

Question 3: Does it mean that the Minister’s fact finding function was conditioned by evidentiary rules concerning judicial notice such as that contained in s 144 of the Evidence Act 1995 (Cth)?

Question 4: Can it be said that, the more obscure the subject matter, the less likely it will be that a court bound by the evidentiary rules concerning judicial notice such as that contained in s 144 of the Evidence Act 1995 (Cth) will draw the inference that the Minister has in fact acted upon “evidence” in the form of specialised or common knowledge?

Question 5: Is possession of knowledge or expertise in respect of the subject matter of the Minister's findings concerning American Samoa and Samoa to be inferred merely from the fact that the decision-maker is the Minister having responsibility for the administration of the Migration Act 1958 (Cth)?

Question 6: The Minister’s reasons were not drafted by the Minister personally. Rather, the Minister signed, without alteration, a number of suggested reasons prepared in advance of his decision by a case officer. In circumstances where there is no evidence that the author of the draft reasons had any appreciation of the Minister’s prior knowledge (or lack of) of the subject matter of the findings as set out in the draft, should the FCAFC infer that there was no evidentiary foundation for those reasons?

Question 7: Does the materiality test involve a court asking itself whether, in the absence of the error in question, the administrative decision-maker would (as opposed to could) have made a different decision?

Question 8: In the context of s 501CA(4), does the materiality test involve a balancing or a binary exercise?

Question 9: Should the Minister be presumed to have proceeded on the basis that he was bound to comply with the orders of the Full Court from a previous judgement on the same matter and to have read its reasons for judgment?

Question 10: Was Minister required to consider the Appellant's child's best interests, in accordance with Australia’s international obligations?

Question 11: Would the Minister have been entitled to proceed on the basis that the outer boundary of his duty to consider the interests of the Appellant's child was defined by the particulars the Appellant expressly identified in his representations?

The majority of the FCAFC answered those questions as follows:

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