Federal Court (Full Court). In the examination of facts on which a putative state of mind of an administrative decision-maker is founded, is a court limited to judicial review principles? Will that state of mind be vitiated if it is founded upon “findings or inferences of fact which were not supported by some probative material or could not be supported on logical grounds"? In BSE17, FCA held that a "no evidence" ground relating to administrative fact-finding in the course of the exercise of power (i.e. after the state of mind has been reached) cannot be made out even if a "skerrick" of evidence is available to support that fact-finding. In the formation of the state of mind, is a skerrick of evidence that is consistent with the fact-finding necessarily probative material?
Some of the questions to the Full Court of Federal Court (FCAFC) were as follows:
Question 1: The Minister's decision to refuse to revoke the Appellant's visa cancellation included the following passage: "I find that [the Appellant] will have similar levels of access to any available health or other support services as that [sic] generally available to other Turkish citizens in the same position as [the Appellant], although I recognise that any available services may be of a lower standard than those available to him in Australia". Does that passage indicate the Minister made a finding that health and social security services would be available to the Appellant in Turkey if he were returned to that country?
Question 2: In the examination of facts on which a putative state of mind of an administrative decision-maker is founded, is a court limited to judicial review principles?
Question 3: Will that state of mind be vitiated if it is founded upon “findings or inferences of fact which were not supported by some probative material or could not be supported on logical grounds"?
Question 4: In BSE17, the Federal Court had held that a "no evidence" ground relating to administrative fact-finding in the course of the exercise of power (i.e. the power exercised after the state of mind has been reached) cannot be made out even if a "skerrick" of evidence is available to support that fact-finding. In the formation of the state of mind, is a skerrick of evidence that is consistent with the fact-finding necessarily probative material?
Question 5: In the formation of the state of mind as to whether there was "another reason", pursuant to s 501CA(4), to revoke the mandatory cancellation of the Appellant's visa under s 501(3A) of the Migration Act 1958 (Cth), did the Appellant's submissions to the effect that Turkey had a social security system constitute probative material to support a finding that Turkey had such a system?
The FCAFC answered those questions as follows: