Federal Court (Full Court). Can the Tribunal act on its personal or specialised knowledge and on matters which are commonly known? Does the discharge of the onus placed on the judicial review applicant to prove that a finding by the Tribunal, which required evidence but was one in respect of which there was not a skerrick of evidence, was material to the outcome require proof that the finding was erroneous?
The High Court had in decided in Viane as follows:
[17] 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. By “no evidence” this has traditionally meant “not a skerrick of evidence”.
[18] There is otherwise nothing in the statutory language of s 501CA(4) of the Act that prohibits the Minister from using personal or specialised knowledge, or commonly accepted knowledge, for the purpose of considering the representations made by an applicant, and in determining whether the Minister is satisfied that there is “another reason” for revocation. Indeed, there are simply no 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). Nor is there any express requirement that the Minister disclose whether a material finding was made from personal knowledge. 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.
[19] In exercising the power conferred by s 501CA(4) of the Act, the Minister is free to adopt the accumulated knowledge of the Minister’s Department (“the Department”). Indeed, it is now well established that the Minister may 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.
[20] There is no necessary dividing line, for the purposes of s 501CA of the Act, between the use of personal or specialised knowledge, or the use of that which is commonly known, as against the need for some evidence or other material to support a finding which the Minister may make. Where the Minister wishes to make a finding in support of a conclusion that she or he is not satisfied that there is “another reason” for revocation, and the Minister has personal or specialised knowledge which supports that finding, the Minister may use that knowledge. The Minister may also supplement or support such a finding with evidence or other material. Where the finding is not within such personal or specialised knowledge, and is not a matter commonly known, it will need to be supported by some evidence or other material. It cannot be asserted without any basis at all. Different considerations might arise if the finding in question was material to the process of reasoning and was incorrect. But that has not been suggested here.
In considering under s 501CA(4) of the Migration Act 1958 (Cth) whether there was “another reason” to revoke the cancellation of the Respondent’s visa, the Tribunal found Canada had a similar standard of rehabilitation services to Australia (Rehabilitation Finding).
The Full Court of the Federal Court (FCAFC) said as follows:
37 The following should be noted about the context in which the Second Tribunal made the Rehabilitation Finding at T[158] (set out at [16] above):
(1) Mr Mukiza has never put a case that, if returned to Canada, he would not be able to access a comparable standard of health care to that in Australia. No such contention had been made in his representations under s 501CA(4) or to the First or Second Tribunal. Mr Mukiza’s evidence before the First Tribunal was that “there is a decent health system in Canada”.
(2) The Minister and the Minister’s delegates have consistently acted on the basis that the standard of health care in Canada was comparable to that in Australia. As noted at [4] above, in finding in Mr Mukiza’s favour, the First Tribunal had stated that it could “be assumed in terms of the level of standard of living, welfare, healthcare and associated matters that Canada has an equivalent standard to Australia”. As noted at [9] above, the second delegate referred to the First Tribunal’s decision and concluded that Mr Mukiza “would have similar access to health services as would be available to other Canadian citizens and his health needs could be met in that country to the same extent that they are in Australia”.
(3) Mr Mukiza has never put a case that rehabilitation support services in Canada were not comparable to those in Australia. He did not adduce any evidence to that effect. Mr Visser’s report does not suggest otherwise.
(4) Mr Visser’s report was before the First Tribunal and the Second Tribunal. Mr Visser stated that he was “not familiar enough with Canada’s social support systems to guess the likelihood of [integration into support services] being effective”. This comment was closely followed by the observation that, if Mr Mukiza were permitted to stay in Australia, “the best intervention would be transition to a long-term residential drug program”. Mr Visser went on to give an example of a program available in the Australian Capital Territory with which he was familiar. This report does not address whether the health systems in Canada and Australia, including rehabilitation services, are comparable.
Some of the questions to the FCAFC were as follows:
Question 1: Can it be assumed that the Rehabilitation Finding proceeded from the Tribunal’s personal or specialised knowledge?
Question 2: Could the Tribunal act on the accumulated knowledge of the Department as expressed in the material before the Tribunal?
Question 3: In circumstances where the delegate’s statement of reasons was before the Tribunal, is the statement likely to have been closely considered by the Tribunal even if the Tribunal did not expressly refer to such a statement?
Question 4: Was the Parliamentary Secretary to the Minister bound by Ministerial Directions?
Question 5: Can the Tribunal act on its personal or specialised knowledge and on matters which are commonly known?
Question 6: Can it be said that “the High Court’s reference at [27] to “the store of knowledge” the Minister has “built up over many years, from dealing with individuals from so many countries and territories” could not be translated to the Tribunal sitting in the General Division”?
Question 7: Can it be said that “the content of the obligation to give reasons under s 43 of the AAT Act was not relevantly different from the obligation of the Minister under s 501G(1) read with s 25D of the Acts Interpretation Act 1901 (Cth)”?
Question 8: Can it be said that the Tribunal did not act on its own knowledge or the knowledge of the Department or on matters which are commonly known, as it did not state it was so acting?
Question 9: Does the discharge of the onus placed on the respondent (who was the judicial review applicant) to prove that a finding by the Tribunal, which required evidence but was one in respect of which there was not a skerrick of evidence, was material to the outcome require proof that the finding was erroneous?
The FCAFC answered those questions as follows: