4.3 Consideration
33 Grounds 1 and 2 concern the use made by the Tribunal of the police narratives.
34 I have in section 3 above summarised the decision of the Tribunal. Relevantly for these grounds, after identifying the terms of para 8.2, the Tribunal considered the identity of the persons who were the members of the applicant's family and then addressed the evidence concerning family violence, including evidence given orally by the applicant and his wife, who is the alleged victim of the family violence. The Tribunal then addressed the police narratives and other material indicating that the applicant had engaged in family violence before assessing the weight to be given to the family violence consideration, by reference to para 8.2(3). After taking into account the applicant's submissions that it should not rely on the police narratives, the Tribunal held at [217] that it was satisfied that, more likely than not, based on the totality of the police narratives and the further supplementary documents, the allegations set out in the police narratives against the applicant are made out for the purposes of the weighing exercise required by the Direction in general and para 8.2 in particular.
35 In relation to ground 1, in my view the applicant's approach to the construction of para 8.2(2)(b) is incorrect. When read as a whole, para 8.2(2) identifies the circumstances where the receipt by a decision maker of information in relation to the perpetration of family violence is to be considered relevant. In para 8.2(2)(a) this will arise upon a non-citizen being convicted of an offence, found guilty of an offence or having charges proven (however they are described) that "involve" family violence. The definition of "family violence" is broad and extends beyond physical assault to include derogatory taunts, destruction of property and includes acts that fall within the ambit of what might broadly be termed acts of coercive control: see definition at [8] above. Consideration of "family violence" is also relevant to a decision maker where, under para 8.2(2)(b), there is information or evidence from independent and authoritative sources indicating that the non-citizen is or has been involved in the perpetration of family violence. Sub-paragraph (b) is self-evidently of broader scope than (a). At its widest, it identifies that the decision maker must take into account as a consideration not only evidence, but information indicating the non-citizen's perpetration of family violence. This is relevantly subject to the limitation that it is from "independent and authoritative sources".
36 However, para 8.2(2) does not establish a particular standard for fact finding. It presents the circumstances in which the consideration crosses the threshold of "relevance" by reference to the identified information. The question of what may be considered to be an independent and authoritative source is left to the decision maker, being a question of evaluation having regard to the nature of the conduct and the circumstances of the particular case. This is a familiar task and is to be understood in the context of s 33(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which provides for the Tribunal to conduct a proceeding with as little formality and technicality as required by the case, noting that the Tribunal is not bound by the rules of evidence, but may inform itself on any matter in such manner as it thinks appropriate.
37 I do not accept the applicant's contention that where information (or evidence) may be said to arise from a step along the way in a process of criminal investigation, as he characterises the police narratives, that such information may not separately be considered for the purposes of para 8.2(2)(b) not least because, as a matter of construction, the words "and/or" placed between (a) and (b) expressly require that each be given separate consideration. Nothing in the language of (b) suggests that information or evidence potentially relevant to procuring a conviction of family violence within (a) should be excluded. Nor does it appear, having regard to the "serious concerns" of the Government set out in para 8.2(1), that the purpose of para 8.2(2)(b) is intended to be so confined.
38 Nor do I consider that the Tribunal erred in concluding that the police narratives may be considered to be independent and authoritative sources. The use of such language is familiar within the Direction. Paragraph 7(1) provides that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight. Paragraphs 7(2) and (3) address the weight to be given to primary and other considerations. In the case of para 8, para 8.2(2) identifies the circumstances where family violence may be relevant in the decision making process and para 8.2(3) identifies certain listed factors to which weight must be given in considering the seriousness of the family violence.
39 In my view the police narratives are capable of amounting to information from an independent and authoritative source. On the face of those reports, named police officers make a contemporaneous note of a complaint made to them, recording the time of the complaint. The police officers are "independent" because they have no association with the controversy currently before the Tribunal or the parties. The report is a potentially "authoritative source" because it may be trusted to be accurate or reliable. It is an "authoritative source" in the sense that such a narrative may be "an accepted source of information", not as to the truth of the statements attributed to various persons, but rather as to the accuracy of the information that is recorded. The degree of trust to be placed in the source and its reliability as information pertinent to the conclusions to be reached must in each case be weighed up by the decision maker, bearing in mind the circumstances of each case.
40 The reasoning of the Tribunal at [169] and the first sentence of [170] are directed in terms to finding that the requirements of para 8.2(2)(b) were met, such that the Tribunal could form the view that the circumstances relevant to the consideration of family violence had arisen. This involved consideration of whether the subject police narrative could be considered independent and authoritative. Having done so, the Tribunal proceeded in the latter part of [170] and [171] to consider whether the applicant had been involved in the perpetration of family violence. At this point, the Tribunal did not confine its consideration to the content of the police narrative, but also took into account the oral and written evidence of the applicant and his wife, which it had earlier summarised in some detail. It concluded, on the basis of the whole of the evidence, that he had been involved in family violence in relation to the incident identified in the police narrative, rejecting the denials of the applicant and his wife. After making findings pertinent to para 8.2(2)(b) for each of the police reports and the supplementary documents, the Tribunal returned to assess the seriousness of the applicant's family violence by reference in terms to each of the factors in para 8.2(3) having regard to the totality of the evidence. It expressed its conclusions at [217] to [218].
41 It might be said that there's some awkwardness in the language of paras 8.2(2)(b) and 8.3. The former presents a low threshold of relevance to be assessed having regard to the nominated sources. The latter involves consideration of the seriousness of the family violence, which involves a broader weighing exercise having regard at least to the four factors identified. There is some overlap insofar as in para 8.2(2)(b) the decision maker is obliged to weigh up whether or not the nominated information or evidence provides an indication of family violence. It appears from the reasoning of the Tribunal that it understood these tasks.
42 During the hearing, counsel for the applicant submitted that because the police narratives were provided to the Tribunal by the Minister, rather than the police directly, and the Minister was not merely a "vessel" for the documents but was involved in selecting which ones to provide, the narratives should not be considered to be independent information. He further submitted that the Tribunal erred in failing to consider the reliability or impartiality of how the Minister presented that evidence. I reject this submission. It was not in dispute that the narratives were police records that had been extracted from documents produced on subpoena. Furthermore, the applicant was represented before the Tribunal and had the ability to tender any additional documents if he had concerns about the provenance or completeness of the police narratives. The Tribunal was entitled to rely on the documents that were tendered.
43 In my view it cannot be said that the Tribunal erred in concluding that there was information from independent and authoritative sources in the form of some of the police narratives indicating the applicant's involvement in the perpetration of family violence within para 8.2(2)(b). To the extent that the appellant criticises the Tribunal's interpretation of the police narratives in assessing the weight to be given to them, that is a challenge to the merits of the fact finding by the Tribunal and is beyond the scope of permissible review.
44 Accordingly, ground 1 of the application must fail.
45 Ground 2 of the application concerns an alleged denial of procedural fairness based on the contention that the Tribunal failed to afford the applicant an opportunity to question the authors of the police narratives. I am not satisfied that this ground has been established.
46 The final words of para 8.2(2)(b) add an explicit requirement that the non-citizen being considered under ss 501 or 501CA has been afforded procedural fairness. No doubt this requirement has been included within the Direction to emphasise to decision makers that where information or evidence of the type set out in (b) is to be considered, procedural fairness must be given. There was (correctly, in my view) no suggestion on the part of the applicant that the content of the obligation of procedural fairness is any different or more onerous when arising under para 8.2(2)(b) than that ordinarily required by the authorities.
47 There is no doubt that the Minister presented his case to the Tribunal on the basis that the police narratives should be received for the purpose of assessing the applicant's involvement in family violence. The reasons given by the Tribunal demonstrate that the applicant was cross-examined about the police narratives where they indicated that he had been the subject of complaints of violence against his wife. He was also cross-examined about the further supplementary documents that referred to past family violence. The applicant's wife also gave evidence and was cross-examined about the material that indicated that she had made complaints in the past to the police about family violence. The Tribunal's reasons indicate that both witnesses were challenged on contradictions between these documents and their denials that family violence had taken place. Plainly, the applicant was aware that the Minister intended to rely on the police narratives. The applicant was also given the opportunity to make submissions about the Tribunal's proposed reliance on these materials, which his legal representatives did, as noted in the Tribunal's reasons at [208] to [215].
48 In my view, it cannot be said that in the circumstances of the present case the obligation to afford procedural fairness extended to an additional requirement that the Tribunal permit the applicant to cross-examine the police officers who were the authors of the police narratives. As noted, para 8.2(2) concerns the threshold question of relevance. The obligation to afford procedural fairness required that the applicant be aware of the issue and have an opportunity to address it. No additional obligation to afford procedural fairness arises under that paragraph such that cross-examination of the respective police officers (or other persons who could speak to the contents of the reports) was required.