XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131 | Case summary

Consideration

The sole ground of appeal is expressed as follows in the notice of appeal: The primary judge erred by failing to find that the Second Respondent was in error by making a finding that was legally unreasonable including because it was without a probative basis, namely "that drugs are [not] as readily available in detention as they are in the community".
While the appellant's written outline of submissions also suggested that the appellant was not afforded procedural fairness in relation to the impugned finding alleged to have been made by the Tribunal, his counsel clarified in oral submissions that he did not seek to raise procedural fairness as an independent ground of review, but only as an "aspect" of the pleaded ground relating to the lack of any probative basis for the finding. In other words, the appellant did not argue that the Tribunal had failed to give him an opportunity to be heard in relation to its observation about the availability of drugs in detention. It would have been difficult for the appellant to maintain any such argument in the absence of evidence about the conduct of the hearing by the Tribunal, including a transcript of that hearing: see Chetcuti v Minister for Immigration and Border Protection (2019) 270 FCR 335 at [107], [111] (Murphy and Rangiah JJ).
The appellant submitted that there was no probative material before the Tribunal to support a finding that drugs were not as readily available in detention as they were in the community. In this regard, the appellant relied on Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595 at [111], where Mortimer J (with whom Moshinsky J agreed) said: Where it involves findings of fact which are critical or material to the way in which the statutory power is exercised, the Assistant Minister's consideration and exercise of power must be grounded in probative material, and not in speculation or guesswork, or (worse) assumptions based on material incapable of supporting those assumptions.
In Splendido, it was held that the Assistant Minister, in deciding not to revoke the cancellation of the respondent's visa, had erred in finding that there was a "likelihood" that the respondent would reoffend and that he represented an unacceptable risk of harm to the Australian community, in circumstances where there was no probative basis in the material before the Assistant Minster to enable him to make such a qualitative assessment. In particular, a "bare" recitation of offences that had been committed by the respondent in the past was insufficient to provide a rational foundation for any findings about his future behaviour, in the absence of information about the nature and circumstances of those offences together with other relevant material about the present circumstances of the respondent.
In the present case, the appellant submitted that he had provided evidence of his rehabilitation in that he had not used drugs for more than two years, which was important to the Tribunal's assessment of the likelihood of him engaging in further criminal or other serious conduct within para 8.1.2(2)(b) of Direction 90. In finding that there remained an unacceptable risk of reoffending, the Tribunal found that the appellant's abstinence from drugs while in detention could not evidence his ability to abstain from drug use when living in the community: T [75]. This was based on the impugned finding that, while drugs may be available in jails and in the Villawood Immigration Detention Centre, the Tribunal did not consider that drugs were "as readily available" in detention as they were in the community.
The appellant argued that the impugned finding contained three embedded findings: (i) drugs were available to the appellant in detention; (ii) drugs would be available to the appellant in the community; and (iii) drugs were more "readily available" (and would be more readily available to the appellant) in the community than in detention. The appellant accepted that there was evidence before the Tribunal in relation to the availability of drugs in detention, and that the availability of drugs in the community could be regarded as a matter of common knowledge. However, the appellant submitted that the third aspect of the finding, in relation to the comparison between the availability of drugs in detention and their availability in the community, was not commonly known, obvious and uncontradicted. Rather, it was at least a matter of debate or controversy, which was liable to be controverted by material showing that drug use is rife in detention, including at Villawood. The appellant submitted that there was not a "skerrick" of probative evidence to support the Tribunal's observation or conclusion that drugs were more readily available in the community than in detention.
We note that the appellant sought to place before the Court a range of "public" material that was said to substantiate the prevalence of drug use in a detention environment such as Villawood. This included the reports of several coronial inquests as well as extracts from Hansard of statements made by a Minister to the Parliament in the context of a second reading speech on proposed amendments to the Migration Act. None of this material was properly adduced by way of evidence, nor is it helpful in resolving the issues raised on the present appeal. As mentioned above, the appellant disclaimed any suggestion that he had been denied procedural fairness by the Tribunal. Further, the appellant accepted that the Court could not properly make findings on the relative availability of drugs in detention and in the community, and he did not rely on the material in support of any contention that the impugned finding made by the Tribunal was in fact incorrect. It may be recalled that the primary judge made a similar ruling in relation to the inadmissibility of evidence on which the appellant sought to rely comprising media reports concerning the availability of drugs in immigration detention: J [46]. Ultimately, the appellant sought to rely on the reports and public statements to illustrate the materiality of the Tribunal's alleged error, in that he submitted there was a real possibility that the Tribunal would have reached the opposite conclusion if it had invited or looked at evidence on the question.
The Minister did not contend that there was any direct evidence before the Tribunal relating to the comparative availability of drugs in detention and in the community. Rather, the Minister submitted that the primary judge was correct to characterise the Tribunal's statement as one of lack of satisfaction or persuasion of a claim advanced by the appellant, rather than a positive finding of fact that required evidence or other material in support. Alternatively, the Minister advanced three further answers to the appellant's ground of appeal, two of which were (as observed above) the subject of the proposed notice of contention: first, any finding made by the Tribunal about the availability of drugs in detention had a rational basis as a reasonable inference from the Tribunal's understanding about the obvious and inherent features of immigration detention; secondly, the "no evidence" ground could only succeed where there was no evidence or material to support a jurisdictional fact, and the issue whether or not drugs were more readily available in the community was not a jurisdictional fact; thirdly, the impugned statement made by the Tribunal was based on its personal or specialised knowledge about the features of detention.
The notice of contention was not filed by the Minister within the time prescribed by r 33.21 of the Federal Court Rules 2011 (Cth). The appellant opposed the grant to the Minister of leave to rely on the draft notice of contention, both because of the late stage at which it was filed (accompanying the Minister's written outline of submissions dated 15 February 2024) and because the grounds set out in the notice have no prospect of success on their merits. We would grant leave to the Minister to rely on the notice of contention, the grounds of which arise from and are related to issues that were agitated before the primary judge, and do not require or invite any need for further evidence. The appellant has not pointed to any prejudice caused by the Minister's delay in filing the notice.
The central question raised by the appeal concerns whether and when it is necessary for findings made by the Tribunal in reviewing a non-revocation decision under s 501CA(4) of the Migration Act to be supported by some evidence or other material that provides a probative basis for those findings. This question must now be addressed within the framework of principles which emerge from the High Court's decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398, which were considered and applied by a Full Court of this Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza (2022) 291 FCR 568.
In Viane, the High Court unanimously upheld a decision made by the Minister personally not to revoke a decision to cancel a Class TY Subclass 444 Special Category (Temporary) visa held by Mr Viane. In reaching the conclusion that he was not satisfied that there was another reason to revoke the original cancellation decision, the Minister made several findings about conditions in American Samoa and Samoa, where Mr Viane had been born and to which he might be removed if the cancellation of his visa was not revoked. Those findings related to the languages spoken in American Samoa and Samoa, and the availability of and access to welfare, healthcare and educational services. It was common ground that there was no "objective evidentiary material" before the Minister capable of supporting the findings: Viane at [7]. In such circumstances, the Minister's decision was challenged on the basis that the findings had been made without any evidentiary support.
The High Court held that the "obvious inference" was that the impugned findings were based on the personal or specialised knowledge of the Minister or his Department about conditions in American Samoa and Samoa, and that nothing in s 501CA(4) or the statutory scheme prohibited the Minister from relying on such knowledge for the purposes of considering Mr Viane's representations and determining whether there was another reason to revoke the cancellation of his visa: Viane at [18], [26]-[28]. A number of propositions can be drawn from the Court's reasons for judgment about the approach to fact-finding in the context of s 501CA of the Migration Act:
The Parliament has not mandated or prescribed the reasons which might justify revocation of a cancellation decision under s 501CA(4)(b)(ii), and there may be few mandatorily relevant matters that the Minister is required to consider: Viane at [13]. However, the Minister is required to consider and understand the representations made by the person about revocation in accordance with the invitation to make such representations: Viane at [13].
The Minister is not obliged "to make actual findings of fact as an adjudication of all material claims made by an applicant": Viane at [14]. A decision as to whether or not the Minister is satisfied that there is another reason why the cancellation decision should be revoked "might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of the applicant's past offending": Viane at [14].
In some cases, the Minister "may simply not be persuaded" that a person's assertions about future events constitute another reason for revocation: Viane at [28]. This might include where the representations made by the person "lack any substance altogether", without the need to make findings of fact about the various claims made: Viane at [15]. Further, the representations might traverse topics that "might not lend themselves to be addressed by evidence", including matters of judgment: Viane at [15].
Any findings of fact made by the Minister must either be based on some evidence or other supporting material, or must be made in accordance with the Minister's personal or specialised knowledge (including the adoption of the accumulated knowledge of the Department) or by reference to what is commonly known: Viane at [17]-[19]. There is "no necessary dividing line" between these two categories of finding: Viane at [20].
If the statement of reasons does not identify any evidence or other material in support of the Minister's findings, it may be open to infer that the findings "proceeded from the Minister's personal or specialised knowledge or were matters commonly known": Viane at [18]. In this regard, the Minister is not expressly required to disclose in his or her reasons for decision whether a material finding was made from personal or specialised knowledge: Viane at [18]. Such an inference might not be open in those "extreme and rare cases where the Minister has made particular or personal findings about an applicant, which could not have been the subject of any pre-existing personal or specialised knowledge (or common knowledge), and were not otherwise supported in any way": Viane at [21].
It may be noted that the High Court in Viane expressly distinguished circumstances in which a decision might be challenged on the basis that a material finding of fact made by the decision-maker was incorrect: Viane at [20]. The Court referred to Duggan v Federal Commissioner of Taxation (1972) 129 CLR 365 at 368-369 (Stephen J), in which a decision made by the Commissioner under the Income Tax Assessment Act 1936 (Cth) that it was not unreasonable for a special income tax rate to apply to certain trust estates was set aside as having been "based upon a mistaken view of relevant facts". In Viane, however, the respondent had not suggested that the Minister's observations about conditions in American Samoa and Samoa were in fact incorrect: Viane at [8]. The Court nevertheless indicated that it had been open to the respondent to show that the observations were incorrect, presumably by way of admissible evidence directed to the correctness of those observations, but had chosen not to do so. Indeed, the Court described as "striking" the respondent's submissions to the effect that the Minister erred in making findings without any probative material "even if the two impugned observations were true": Viane at [8].
In the present case, the appellant does not invite this Court to make findings as to the correctness of the Tribunal's observations about the relative availability of drugs in detention and in the community. Although it might be going too far to say that the appellant did not suggest that those statements were in fact incorrect, he did not ultimately seek to establish that they were wrong, but rather contended that they were unsupported by any probative material. Beyond this, the appellant sought to refer to material about the prevalence of drugs in immigration detention only to demonstrate the materiality of the Tribunal's error, and to rebut the Minister's contention that it was a matter of "common knowledge" that the supply of drugs in detention was monitored and restricted.
As noted above, the appellant's attempt to rely on evidence about the availability of drugs in detention was rejected by the primary judge, who ruled such evidence as inadmissible on the basis that "evidence to the contrary of an asserted fact does not prove that there was no evidence for that fact": J [46]. This reflects the orthodox position in relation to the "no evidence" ground of judicial review at common law (cf. the statutory ground under s 5(1)(h) and (3)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth)). As Brennan J observed in Waterford v Commonwealth (1987) 163 CLR 54 at 77, there is no error of law simply in making a wrong finding of fact. Putting to one side jurisdictional facts, evidence is not generally admissible on judicial review to contradict findings of fact made by an administrative decision-maker based on the material before him or her: see e.g. Minister for Immigration and Border Protection v Tesic (2017) 251 FCR 23 at [48]-[55] (Reeves, Robertson and Rangiah JJ); BRT19 v Minister for Home Affairs [2020] FCA 449 at [26] (Abraham J); MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8] (Nicholson J); see more generally Chandra v Webber (2010) 187 FCR 31 at [40]-[45] (Bromberg J). However, it is unnecessary for present purposes to explore the circumstances in which it might be open to contend that a finding of fact made by a decision-maker was incorrect in order to establish jurisdictional error or some other legal error.
In Mukiza, the Full Court applied the principles in Viane to a decision made by the Tribunal on a review of a decision by a delegate of the Minister under s 501CA(4) not to revoke the cancellation of the respondent's visa. The Tribunal made findings that Canada had a high standard of living that was similar to Australia, and had a similar standard of rehabilitation services to Australia. Those findings were challenged as having been made without any evidence.
At first instance in Mukiza v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1503, Rofe J distinguished earlier authorities in which it had been held that the Minister or the Tribunal was not required to refer to specific evidence in support of conclusions based on an understanding as to the availability of government benefits or services in New Zealand: see Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296 at [69] (Robertson J); McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109 at [37] (McKerracher J); cf. EZA20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1775 at [76]-[78] (Stewart J); Schmidt v Minister for Immigration and Border Protection [2018] FCA 1162; 162 ALD 495 at [34] (Burley J). In this regard, Rofe J differentiated between, on the one hand, "general high level statements" about the comparability of healthcare between countries in broadly similar circumstances and, on the other hand, "findings as to more specific or detailed matters" which required some evidentiary support. Her Honour concluded that the finding about the comparable standard of living fell into the former category, but the finding about rehabilitation services fell into the latter category "given its level of specificity": at [81], [91].
On the appeal to the Full Court in Mukiza, this analysis had been overtaken by the High Court's decision in Viane. The Court (Markovic, Thawley and Cheeseman JJ) confirmed that the principles in Viane were equally applicable to the Minister or his or her delegate when making a decision under s 501CA(4) and to the Tribunal when conducting a review of a decision made by the Minister's delegate under s 501CA(4): Mukiza at [46]-[59]. The Court held that the rehabilitation finding was not one that was only able to be made on the basis of direct evidence, and inferred that the Tribunal had acted on its personal or specialised knowledge or the accumulated knowledge of the Department in making that finding: Mukiza at [39]-[41].
In order to apply these principles to the facts of the present appeal, it is necessary to examine the context in which the Tribunal made the impugned statement or finding about the relative availability of drugs in detention and in the community:
The impugned statement was made in the course of the Tribunal's assessment of the risk that may be posed by the appellant to the Australian community, including the likelihood of the appellant engaging in further criminal or other serious conduct. The Tribunal was required by para 8.1.2(2)(b) of Direction 90 to take into account any evidence of rehabilitation achieved by the time of its decision.
In his representations to the delegate and his submissions to the Tribunal, the appellant had sought to explain his past offending by reference to his history of untreated mental illness and substance abuse, and had submitted that he was committed to rehabilitating himself and undergoing treatment for his mental health and substance dependence problems. In support of these representations, the appellant relied on the psychological reports from Mr Albassit, who (among other things) stated that the appellant had "been abstinent from the use of illicit substances since September 2020", and provided a plan for his long term psychiatric and psychological treatment.
The submissions made by the appellant's representative to the delegate dated 25 February 2021 stated that the appellant "since being incarcerated, has been given the opportunity to get clean and has now been assessed by a psychologist and provided a comprehensive treatment plan to address his serious mental health and drug addiction problems". This point was reiterated in the further submissions from the appellant's representative dated 3 March 2022, which relevantly stated: It is respectfully submitted that [the appellant's] criminal history supports Mr Albassit's diagnosis and reflects the behaviour of an individual with serious, untreated, drug and mental health conditions. [The appellant] has been unable to undergo the serious treatment he requires while imprisoned and in detention, however, he has been able to get clean as a result of his imprisonment. It is submitted that in order to remain clean, his serious mental health conditions will need to be addressed and treated and [the appellant] is unable to do that while in detention. These submissions were reproduced in the appellant's statement of facts, issues and contentions filed in the Tribunal, and were ultimately referred to in the Tribunal's reasons: T [44], [60].
The delegate did not accept that the appellant had rehabilitated, "in view of the lack of evidence of him practically and effectively addressing his substance abuse and offending behaviours by way of programs, courses and counselling, despite his longstanding issue with drugs", and considered that "his ability to abstain from drug use, a factor associated with an increase in the likelihood of him reoffending, has not yet been tested in the community".
The Tribunal expressed reservations about whether the appellant would engage or participate in any treatment plan in respect of his mental health and drug dependence issues if he were released into the community: see T [65], [68], [72]. The Tribunal was not satisfied that the appellant had shown a genuine interest in seeking help for his mental health or drug addiction issues: T [61]. In the absence of treatment, the Tribunal found that the appellant had difficulty making sound judgments and was unable to control impulses and identify triggers: T [62]. The Tribunal considered that, while his conditions remained untreated, the appellant's offending behaviour was likely to continue if he were released into the community: T [60].
The Tribunal accepted Mr Albassit's opinion that the appellant's offending was linked to his post-traumatic stress disorder and a drug dependence disorder, but was not satisfied that those conditions had been adequately treated: T [79]. The Tribunal considered that the appellant'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": T [79]. The Tribunal found that, if the appellant were to be released into the community, "there remains a risk that [he] may resume the drug-intake and that he may re-engage in offending conduct because he would be subjected to the same stressors as before and because he may not have the skills to deal with those": T [80]. Accordingly, there remained a "not insignificant" risk that he would reoffend.
The Tribunal addressed the question of the appellant's abstinence from drugs during his incarceration and detention in the context of considering whether he was likely to engage in treatment and remain drug-free if he were released into the community. The Tribunal gave limited weight to the observations made on this issue by Mr Albassit, who had relied on the appellant's abstinence in expressing the view that he had good prospects of rehabilitation if given the opportunity: T [74]. The Tribunal, on the other hand, took the view that the appellant's abstinence from drugs during his incarceration could not evidence his ability to abstain from drug use when living in the community: T [75].
The impugned statement that "the Tribunal does not consider that drugs are as readily available in detention as they are in the community" was made in direct response to the appellant's evidence to the Tribunal that he had been receiving injections for his drug dependence and had not used drugs for two years, notwithstanding that drugs are available in jails and at Villawood. The Tribunal accepted the claim that drugs are available in detention. However, the Tribunal did not regard the appellant's past abstinence from drugs while he was in jail or immigration detention as showing his ability to abstain from using drugs in a different environment in the future. This was based on the Tribunal's view about differences in the "availability" of drugs in detention and in the community respectively.
It may be noted that, against the background of the delegate's finding that the appellant's ability to abstain from drugs had "not yet been tested in the community", the Minister's statement of facts, issues and contentions before the Tribunal relevantly submitted that "less weight should be attributed to the [appellant's] ability to demonstrate that he is able to refrain from using illicit substances and address his mental health in circumstances where the [appellant's] movement and ability to commit further offences has been restricted since the [appellant] has not been residing in the community". The appellant did not seek to adduce any evidence before the Tribunal to rebut this contention: cf. Viane at [22]; Mukiza at [44].
While the impugned statement was expressed in negative terms ("the Tribunal does not consider"), it may be taken to convey the Tribunal's view that drugs are more readily available in the community than in detention. Nevertheless, the question whether that view was required to be supported by evidence or other material does not turn on whether it was a statement of a negative or a positive character. The impugned statement was not concerned with the Tribunal's lack of satisfaction that particular events had occurred as alleged (cf. Minister for Immigration and Multicultural Affairs v N989/01 [2002] FCAFC 237 at [19] (Heerey, Carr and Mansfield JJ)), nor with a finding that was contradicted by the evidence before the Tribunal (cf. Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50 at [9]-[13] (Wilcox, French and Finkelstein JJ); SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; 77 ALD 402 at [28] (Mansfield, Selway and Bennett JJ)). Rather, the statement reveals an understanding that was held by the Tribunal as to a certain state of affairs, and the question is whether evidence or other material was required to support that understanding.
The Minister relied on a line of authority to the effect that no probative evidence is required to support the rejection of a claim or the rejection of evidence: see e.g. NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 124 at [33] (Nicholson and Edmonds JJ, Conti J agreeing), referring to WAJS v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 240 FCR 261 at [12] (Wilcox, Marshall and Jacobson JJ). That may be so, but it does not necessarily answer the question raised in the present case, in that the impugned statement made by the Tribunal was not itself a rejection of evidence or a claim made by the appellant, but rather was a basis on which the Tribunal discounted the appellant's past abstinence and rejected his representations about ongoing rehabilitation.
The impugned statement cannot be completely divorced from other findings made by the Tribunal about the appellant's lack of resolve to receive treatment for his mental health and drug dependence issues. The impugned statement was echoed in the Tribunal's broader observation that the appellant's "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": T [79]. That observation drew attention more generally to the differences between the circumstances of the appellant in detention and those he would face in the community, leading to the Tribunal's finding that there was a risk that the appellant may resume his use of drugs and reoffend "because he would be subjected to the same stressors as before and because he may not have the skills to deal with those": T [80].
It is not obvious what the Tribunal meant when it referred to drugs not being as "readily available" in detention as they are in the community. On a fair reading, the observation was not directed to the quantity of drugs in absolute terms, but rather to how "readily" a person may obtain and use drugs in detention as compared with in the community. That is, the observation was concerned with the opportunity to obtain and use drugs, including the opportunity to do so without restriction or detection. The language used in the impugned statement must also be read in the light of the Tribunal's subsequent statement using the same expression "readily available" in respect of "bad influences and other life stressors" in the community. The statement is not one that suggests any need for empirical evidence about the use of drugs in detention or in the community.
However the impugned statement is interpreted, it is clearly directed to matters of a general nature in relation to the circumstances of detention in a jail or immigration detention centre, as compared with the circumstances in the general community. It is not a "particular or personal" finding about the appellant and his individual circumstances of a kind that could not be the subject of any pre-existing personal or specialised knowledge or common knowledge possessed by the Tribunal, which may therefore need to be supported by some evidence or other material: see Viane at [21]. It was on this basis that the High Court in Viane distinguished decisions such as Splendido and Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628. Rather, the impugned statement was an expression of the Tribunal's view in relation to general matters beyond the facts of the particular case, which was used by the Tribunal to assess the representations that had been made by the appellant about his rehabilitation from a drug dependence disorder.
There is some force in the primary judge's conclusion that the impugned statement did not amount to a positive finding about the relative availability of drugs in detention and in the community, but was "properly understood as expressing a lack of satisfaction that the [appellant] had made out a necessary step in his argument", namely that his abstinence from drugs while in detention was a "useful predictor" of his ability to abstain from drug use if released into the community: J [47]. The task of the Tribunal was to consider whether it was satisfied that there was "another reason" why the cancellation decision should be revoked, and this did not oblige the Tribunal to "adjudicate" and make findings of fact on all material claims made by the appellant: Viane at [14]. Part of the Tribunal's task was to make predictions about the future, and in particular the appellant's future behaviour if he were released into the community. It was open to the Tribunal to form a view that it was not persuaded by the appellant's claim that his past abstinence from drugs during his detention demonstrated that he was unlikely to use drugs or to reoffend if he were released into the community. This view did not necessarily rest on any positive findings of fact. The Tribunal's non-persuasion of the appellant's "assertions about a course of future events" did not necessarily require it to make any factual findings: Viane at [28].
In any event, to the extent that the Tribunal made any "finding" about the relative availability of drugs in detention and in the community, it was not a finding for which any specific evidence or other material was required. Rather, an inference can be drawn that the impugned statement was based on matters "commonly known" about the conditions in jail and immigration detention compared with those in the community or, alternatively, on the Tribunal's personal or specialised knowledge about such conditions. As mentioned above, it was not a statement about the particular or personal circumstances of the appellant, and it cannot be suggested that the Tribunal had "merely made things up": see Viane at [26]; Mukiza at [44]. The High Court in Viane stated that there is "no necessary dividing line" between findings that may be based on personal, specialised or common knowledge and those which must be supported by evidence or other material: Viane at [20]. In the present case, the impugned statement made by the Tribunal falls comfortably into the former category.
The kinds of commonly known matters on which the Tribunal was entitled to rely were summarised by the primary judge at J [52]. These included the inherent features of the detention environment, in which detainees are subjected to control and surveillance which restrict the opportunities to obtain and use drugs without detection. As the primary judge found, accepting that drugs are available in detention, it was nevertheless reasonable for the Tribunal to infer that "sources of supply are more limited, and the prospects of detection greater, than for people at liberty in the community": J [52].
The appellant criticised the primary judge's conclusion on the basis that such matters could not be regarded as "common knowledge", because it was a matter of controversy or debate whether drugs were as readily available or more readily available to prisoners or detainees in a jail or immigration detention centre. It is unnecessary to decide whether a matter needs to be incontrovertible before it may properly be treated as a matter of common knowledge by an administrative decision-maker. The relevant question is whether there was a rational basis on which it could be inferred by the Tribunal that drugs are not as readily available in detention as they are in the community, for the purposes of assessing the significance or weight to be given to evidence of the appellant's abstinence from drugs while in detention. It is sufficient if there are facts or circumstances that are matters of common knowledge from which such an inference could be drawn. In the present case, those matters are, in the words of the primary judge, "the obvious, widely known and uncontradicted understanding that the [appellant's] liberty was constrained in detention and his capacity to obtain a commodity (especially one whose sale and use are prohibited) was probably therefore also constrained": J [54]. For the purposes of the impugned statement, the Tribunal did not, and did not need to, go further such as by considering the specific circumstances of the appellant's incarceration and detention or the specific circumstances in which he might be placed if released into the community.
The Tribunal's statement about the relative availability of drugs in detention and in the community is also consistent with the representation made on behalf of the appellant before the delegate and the Tribunal, to the effect that he had been able to "get clean as a result of his imprisonment" (emphasis added). The tenor of the appellant's submission was that he had been unable to obtain proper treatment for his mental health and drug dependence issues while in detention, but that he was committed to obtaining such treatment if he were released. The Tribunal specifically addressed and rejected that submission.
It may also be possible to infer that the Tribunal's observations about the relative availability of drugs in detention and in the community was the product of its personal or specialised knowledge from hearing and determining other reviews of visa cancellation decisions on character grounds. In circumstances where the Tribunal was not required to disclose in its reasons whether the finding was made from personal knowledge (see Viane at [18]), the absence of any disclosure to that effect in the Tribunal's reasons does not preclude such an inference. The primary judge nevertheless considered that, if the Tribunal was relying on its own specialised knowledge, it would have disclosed that "private understanding" to the appellant and invited his response: J [44]. Even if that were the case, however, there was no transcript or other evidence before the primary judge or on appeal to demonstrate whether or not such a disclosure was made in the course of the hearing before the Tribunal.
Because we have concluded that the impugned statement was not a finding that was required to be supported by evidence or other material, it is unnecessary to resolve the Minister's contention that the "no evidence" ground of judicial review is confined to "jurisdictional facts", such as where the power to make the relevant decision depends on the establishment of a particular fact.
As was observed by the primary judge (J [41]), where the existence of a particular objective fact is a precondition to the exercise of jurisdiction by an administrative decision-maker, a court on judicial review may determine whether or not that fact exists on the evidence before the court, leaving less scope for a challenge based on the absence or insufficiency of evidence before the decision-maker. There may, however, be cases in which the relevant power is conditioned on the subjective state of mind of the decision-maker, such as his or her satisfaction as to the existence of certain facts or matters, or in which the decision-maker makes findings of fact on matters that are committed to that decision-maker in the course of exercising a power. Different views have been expressed as to the circumstances in which a finding of fact made in the course of reaching a requisite state of satisfaction or exercising a power can be challenged as lacking any probative basis. The competing approaches were considered by Stewart J in EZA20 at [72]-[75]; see also Buchwald v Minister for Immigration and Border Protection (2016) 242 FCR 65 at [33]-[39] (Bromberg J).
For present purposes, it is sufficient to note that a finding of fact made without a "skerrick" of evidence will amount to an error of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [91] (Hayne, Heydon, Crennan and Kiefel JJ); Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [575] (Weinberg J); Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356 (Mason CJ). Whether such an error of law amounts to jurisdictional error will depend on the nature and significance of the finding of fact. On any view, in order to amount to jurisdictional error, the relevant finding must have been at least a "critical step" on which the ultimate decision was based, if not a precondition to the exercise of jurisdiction: see e.g. SZMWQ v Minister for Immigration and Citizenship (2010) 187 FCR 109 at [125] (Flick J, Besanko J agreeing); Australasian Meat Industry Employees' Union v Fair Work Australia (2012) 203 FCR 389 at [92] (Flick J); cf. Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at [39] (Gummow and Hayne JJ, Gleeson CJ agreeing).
In this regard, it is worth noting that the ground of appeal on which the appellant relies alleges jurisdictional error on the basis of legal unreasonableness, namely, that the Tribunal erred by making a finding that was legally unreasonable because it was without a probative basis. An absence of evidence or a lack of logical grounds for a particular finding or inference of fact might be such that "it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically and rationally on the available material": see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [35] (Allsop CJ, Besanko and O'Callaghan JJ). However, any such irrationality in the course of making a particular finding of fact would only amount to jurisdictional error if the fact was "critical" to the ultimate decision: see Masi-Haini v Minister for Home Affairs (2022) 298 FCR 277 at [54] (Markovic, Meagher and Kennett JJ).
Finally, it is also unnecessary to deal with the submission advanced by the Minister that, if the impugned statement or finding made by the Tribunal about the relative availability of drugs in detention and in the community involved legal error, the appellant had not demonstrated that any such error was material to the Tribunal's decision. Any question of materiality in this context would have been determined by reference to whether there was a realistic and non-fanciful possibility of a different outcome if the error had not occurred, taking into account the evaluative assessment and weighing exercise undertaken by the Tribunal in exercising the power under s 501CA(4): see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 24; 98 ALJR 610; TPTN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 82 at [55]-[63] (Collier ACJ, Meagher and Horan JJ). In particular, if a finding of fact for which there was no probative basis was critical to the Tribunal's ultimate decision, the threshold of materiality is likely to be easily met.

XRZG v Minister for Immigration, Citizenship and Multicultural Affairs

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