Federal Court. Was it "uncontroversial that people in immigration detention are subject to a much greater level of surveillance and monitoring than people in the community generally"? Would the complaint that the Tribunal took into account an irrelevant consideration have force "if the fact that the applicant’s ability to avoid drug use had not been “tested” was the Tribunal’s only basis for finding that he posed an elevated risk of reoffending"?
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: In considering whether the Tribunal had a proper basis for a finding, is the nature of the material that can be relied upon in reaching a decision not as strict as in a proceeding before a court?
Question 2: May inferences in administrative decision-making sometimes be drawn from an absence of evidence?
Question 3: Is the label “inquisitorial” for some purposes inapt to describe Tribunal proceedings heard in its General Division, subject to the provisions of the AAT Act rather than under Part 5 or Part 7 of the Migration Act 1958 (Cth)?
Question 4: Was it "uncontroversial that people in immigration detention are subject to a much greater level of surveillance and monitoring than people in the community generally"?
Question 5: If the answer to Question 4 is 'yes', does it "exclude the possibility of drugs, potentially in significant quantities, being brought into detention centres and becoming available to detainees"?
Question 6: If the answer to Question 5 is 'no', can it nevertheless be said that, "absent evidence of the extent to which that occurs, it was reasonable to infer that sources of supply are more limited, and the prospects of detection greater, than for people at liberty in the community"?
Question 7: If the answer to Question 6 is 'yes', would it be "appropriate in the circumstances of the present case to assume that the relevant finding (if one was made) proceeded from “personal or specialised knowledge” of circumstances in detention"?
Question 8: Had the presiding member’s own knowledge of facts relevant to the issues before it being taken into account, would the Tribunal "have invited complaint (at least) if it had relied on its private understanding of things that were not common knowledge without having disclosed that understanding to the parties and invited their response"?
Question 9: The Tribunal found as follows: "The Applicant’s resolve and ability not to use drugs has not been tested in the community when drugs, bad influences and other life stressors may be more readily available". Would the complaint that the Tribunal took into account an irrelevant consideration have force "if the fact that the applicant’s ability to avoid drug use had not been “tested” was the Tribunal’s only basis for finding that he posed an elevated risk of reoffending"?
The FCA answered those questions as follows: