Can Minister rely on personal or common knowledge?

The Minister personally made the following findings in his decision under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of the respondent's visa:

"I find that the whole family, may, at least initially, experience problems relating to employment, income, housing and lack of family or social support and this would negatively impact on [the respondent's child]. English, however, is widely spoken in American Samoa and Samoa and healthcare, education and some welfare support are available in either location." 

"I accept that the services available in American Samoa and Samoa may not be of the same standard as those available in Australia, and/or may be more expensive to access, and there may be differences in services between American Samoa and Samoa."

The High Court said as follows:

7. The respondent contended that each observation, about the speaking of English and the availability of services in American Samoa and Samoa, was made without any evidentiary support. In that respect, it was common ground that there was no objective evidentiary material before the Minister capable of supporting either finding ...

Some of the questions to the High Court (HCA) were as follows:

Question 1: For the purpose of determining whether the Minister made a finding for which there was no evidence, is it relevant that "the respondent has never suggested that the Minister's observations were in fact incorrect" in circumstances where "it was open to the respondent to show this"?

Question 2: Are there "few mandatorily relevant matters that the Minister must consider in applying s 501CA(4)(b)(ii)" of the Migration Act 1958 (Cth) (i.e. considering whether there is "another reason" to revoke the mandatory cancellation of a visa)?

Question 3: Is the Minister, when personally making a decision under s 501CA(4), "not obliged to take account of any non-refoulement obligations, as expressed in the Act or otherwise, when determining whether there is another reason to revoke a cancellation decision where the materials "do not include, or the circumstances do not suggest, a non-refoulement claim""?

Question 4: Can it be said that "no part of the statutory power conferred by s 501CA of the Act obliges the Minister to make actual findings of fact as an adjudication of all material claims made by an applicant"?

Question 5: Can it be said that, "if the representations made lack any substance altogether, then this of itself might justify a decision not to be satisfied that "another reason" exists to revoke the cancellation decision, without any need to make any findings of fact about the various claims made"?

Question 6: Can it be said that "some of the topics that might be traversed might not lend themselves to be addressed by way of evidence"?

Question 7: Is the minimum obligation under s 501G of the Migration Act 1958 (Cth) to express the "essential ground or grounds" for the conclusion reached by the Minister?

Question 8: Can it be said that, "if the Minister exercises the power conferred by s 501CA(4) and in giving reasons makes a finding of fact, the Minister must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Minister's personal or specialised knowledge or by reference to that which is commonly known"?

Question 9: Has the "no evidence" ground of judicial review traditionally meant "not a skerrick of evidence"?

Question 10: Are there any "limitations on the sources of information that may be considered by the Minister in determining whether to reach the state of satisfaction prescribed by s 501CA(4)(b)(ii)"?

Question 11: Is there "any express requirement that the Minister disclose whether a material finding was made from personal knowledge"?

Question 12: Can it be said that, "in the circumstances of the present case, where no evidence or other material has been identified in support of the Minister's findings about the speaking of English and the availability of services in American Samoa and Samoa, it can be assumed that the findings proceeded from the Minister's personal or specialised knowledge or were matters commonly known"?

Question 13: Is the Minister free to adopt the accumulated knowledge of the Department for the purpose of s 501CA(4)?

Question 14: May the Minister "adopt as the Minister's own written reasons a draft prepared by a departmental officer, provided that such reasons actually reflect the reasons why the Minister had reached her or his decision"?

If the answer to Question 8 is 'yes':

Question 15: Is a finding "made in the absence of any evidence or supporting material about the danger an applicant might pose in the future to the Australian community" an example of findings not "made in accordance with the Minister's personal or specialised knowledge or by reference to that which is commonly known"?

Question 16: Is a finding "about the type of hardship an applicant might personally suffer if deported" an example of findings not "made in accordance with the Minister's personal or specialised knowledge or by reference to that which is commonly known"?

Question 17: Can it nevertheless be said that the production by an applicant of evidence or other supporting material "would engage the need for the Minister to consider such evidence and, if necessary, to answer it with further or different evidence, or other material, if the claims are to be rejected"?

Question 18: Can it be said that, even if it was permissible for the Minister to rely on his personal or accumulated specialised knowledge instead of evidence, "the observations about the widespread use of English and the state of health and welfare services in American Samoa and Samoa, as a matter of procedural fairness, should have been disclosed to the respondent to permit him to make submissions about those matters"?

The HCA answered those questions as follows: