The Housing Department Records
47 The Tribunal referred to housing department incident reports and records primarily at [58] - [61], [156] and [162] - [167] of its reasons.
48 The applicant submitted, by way of examples, that none of the exemplified allegations in these reports and records were sufficiently particularised or sought to be proved by evidence (other than by way of mere assertions by police witnesses and internal housing department documents), yet the Tribunal found that the evidence disclosed a 'pattern of drug-dealing and lawless violence and intimidation'; this was so notwithstanding that much of the evidence was second-hand hearsay and speculative as well as being so general as to be incapable of being tested or rebutted. The applicant further submitted that a review of the hearing transcript indicates that many of these matters were not put to the applicant during the hearing.
49 The applicant submitted that the rules of natural justice required the Tribunal to disregard such evidence.
50 The applicant submitted that while the Tribunal is not bound by the rules of evidence (s 33 of the Administrative Appeals Tribunal Act 1975 (Cth)), it is well established that the right of the Tribunal to inform itself in such manner as it chooses is subject to compliance with the rules of natural justice (see Collins v Minister for Immigration & Ethnic Affairs (1981) 36 ALR 598; Barbaro (Saverio) v Minister for Immigration and Ethnic Affairs (1982) 44 ALR 690 and before the Tribunal (1980) 3 ALD 1 at 5). A rationale for the rules of evidence is that decisions should be reached on the best evidence available and by giving the parties affected a fair hearing. This may mean that evidence that is unreliable should not be admitted or, if admitted, should be given little weight or no weight.
51 Reference was made to what Evatt J said in R v War Pensions Entitlement Appeals Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256, when referring to a provision that the Tribunal was not bound by the rules of evidence:
'But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice".'
52 The applicant submitted that in the present case, the Tribunal's reliance on a large amount of evidence of a general nature, consisting predominantly of hearsay, is made all the more unfair given the highly prejudicial nature of that material and the inability to adduce evidence to the contrary. Regardless of the reasons for which much of that evidence was de-identified (for privacy reasons, say, or because it referred to an informer), the outcome, the applicant submitted, was that there was a serious denial of procedural fairness.
53 The applicant submitted that it was not open to the Tribunal, in the exercise of the power conferred by the statute, to consider (or make findings based upon) the truthfulness or the seriousness of the matters for which the applicant had been the subject of complaint on the basis of such objectionable evidence. There was an obligation on the Tribunal to seek specific comment from the applicant about the truthfulness or the seriousness of each of the matters which were taken into account. This was plainly not possible given that the evidence was general in nature and the particulars of the allegations were anonymous. This may partly explain why the applicant was not cross-examined at all in relation to some of the allegations or in a fair manner in relation to others. In the applicant's submission, this does not justify the failure but merely highlights the unfairness of the Tribunal relying on such evidence.
54 Turning to the allegation in ground 2, that the applicant was denied procedural fairness in relation to police allegations that she was amongst other things 'the head of the drug trade' because such allegations were not put to her fairly or at all, including during her cross-examination, the applicant made the following observations:
(1) At p 168 line 30 of the hearing transcript, Detective Inspector Galea gave evidence that based on intelligence, although there were 'other persons, obviously, dealing drugs', the applicant was 'a major player, a mid-level dealer' of drugs 'in the Airds area' and that she was 'a predominant player there'. The witness repeated at p 171 line 9 of the transcript that the applicant was a 'significant player' in the drug trade and later under cross-examination that she was 'the head of the drug trade' based on police 'intelligence' (p 174 line 34). The Tribunal referred to this evidence at [129] of its reasons and appeared to accept it (at [161], [191] - [192]).
(2) The police witness also invited the Tribunal to accept that there had been fewer drug reports relating to Airds since the applicant had been detained in Villawood Immigration Detention Centre, that there had been a reduction in the drug trade and social tension and that violent assault and robbery had ceased altogether (seemingly to bolster the claim that she was the head of the drug trade). The Tribunal was further asked (in final submissions) to infer that the number of intelligence reports impugning the applicant far exceeded the number of charges against her because victims were reluctant to complain for fear of reprisals (at [133] and transcript at p 180 lines 3 - 22).
(3) The Tribunal appeared to accept these propositions (at [191] - [192]), notwithstanding that the relevant police witness conceded under cross-examination that he had no statistics to prove those assertions and conceded that intelligence is 'not absolute fact' and said that he could not comment upon, and did not know if any informants had a vendetta against the applicant.
55 The applicant submitted that there was no cogent evidence before the Tribunal to substantiate these highly prejudicial submissions; nor were these matters put to the applicant during cross-examination. The allegations that the applicant was a 'major player' were only raised in Detective Inspector Galea's evidence towards the end of the hearing. The applicant was given no opportunity to address that evidence, either before the hearing or during the hearing. Although she was taken to her criminal record and it was put to her that she had dealt drugs, it would not have been obvious to her that she was alleged to be a leader of the criminal drug trade. Nor was she legally represented so that submissions could be made about the admissibility or permissible use of that evidence.
56 The applicant submitted that the failure to put that particular matter to her was particularly unfair given that a significant amount of evidence sought to associate the applicant's conduct with that of her sons. Indeed, the Tribunal referred to their conduct in its reasons as though it were joint conduct (see reasons at [127], [128], [130], [166]).
57 The applicant submitted that the Tribunal should have disregarded the allegation that she was a 'major player' in the drug trade as well as the related imputation that drug activity had decreased since the applicant and her son had been detained. If those matters had been put to the applicant (on the basis of probative evidence), a line of inquiry or chain of reasoning may have ensued which would have prevented the Tribunal from falling into error.
58 The applicant submitted that it is no answer to this ground of review that the Tribunal did not specifically and expressly accept the police witness's evidence that the applicant was a leader in the drug trade. It is clear, reading the reasons for decision as a whole, that the Tribunal accepted the adverse evidence as a whole and gave it credence. The Tribunal did not expressly reject the evidence nor indicate that it would not take it into account. Indeed, it indicated, in relation to housing department reports, that it was prepared to accept the purport of such evidence on the basis that the volume of the evidence 'markedly increase[d]' the probability that it was true. According to the applicant, the evidence as to the applicant's alleged involvement in the drug trade was therefore significant to the Tribunal's decision.
59 The applicant further submitted that having regarded the information as significant, the Tribunal was bound to accord the applicant an opportunity to deal with it: see Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88 at 95 - 96. Even if the evidence was given no weight (unlike here), there was a real risk of prejudice arising from the admission of the evidence (see Brennan J in Kioa v West (1985) 159 CLR 550 at 629 and Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Applicant VEAL at 96 - 97). Because the exercise of the statutory power is conditioned upon the provision of procedural fairness, the denial of procedural fairness in this case vitiates the Tribunal's decision (see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [59] per Gaudron and Gummow JJ).
60 Finally the applicant submitted that, as an aspect of the rules of procedural fairness, the rule in Browne v Dunn [1893] 6 R 67 required the Tribunal to put these matters to the applicant.
61 At the forefront of the Minister's submissions was that the applicant had everything that the Tribunal had. The applicant was served with the police intelligence reports and the housing department records prior to the hearing. They were tendered in evidence at the hearing without objection from the applicant. At no point did the applicant say she did not understand what was contained in them or that she had difficulty in knowing what was alleged against her. Indeed, all of this appears to be common ground.
62 The Minister makes the point that the applicant was cross-examined on the housing department records (reference hearing transcript pp 35 - 39 and 104 - 120) and that at p 115 it was specifically put to the applicant that she was aggressive and violent towards Housing Commission staff and other tenants, had dealt drugs from her rented home and, when she could stay there no longer, invaded the homes of others. The Minister submitted that this was more than sufficient to indicate the nature of the allegations contained in the housing department records, which are in any event self-explanatory.
63 In response to the applicant's claim that the Tribunal was obliged to seek specific comment from the applicant about each allegation contained in the police intelligence reports and the housing department records, the Minister submitted that procedural fairness does not so require; it must have been obvious to the applicant that the Tribunal may rely on the allegations contained in these reports and records as they were in evidence before the Tribunal: cf. Puafisi v Minister for Immigration & Citizenship [2008] FCAFC 39 at [14]. Moreover, the gist of the allegations contained therein was put to the applicant, and the Tribunal's conclusions from the reports and records were obvious so as not to require specific disclosure: Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 - 592; Pilbara Aboriginal Land Council v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539 at 555 - 557, referred to with approval in NAOA v Minister for Immigration & Multicultural Affairs [2004] FCAFC 241 at [25] - [28]; Puafisi at [20] - [23]. It follows, the Minister submitted, that neither more particulars of that evidence nor the Tribunal's conclusions based on that evidence were required to be put to the applicant.
64 As for the apparent contention by the applicant that it was not open for the Tribunal to have regard to the reports and records at all, the Minister submitted that those reports and records were obviously relevant given that they indicated similar conduct to that for which the applicant had been convicted, as the Tribunal noted at [156] and [168]. The Tribunal indicated that it was aware of the limitations in those reports and records: [168]. It was not obliged to disregard obviously relevant material before it, to which, in any event, the applicant did not object.
65 The Minister observed that ground 2 complains of oral evidence from Detective Inspector Galea that the applicant was 'a major player, a mid-level dealer of drugs in the Airds area'. The Minister made the following further observations: the applicant had numerous convictions for supplying drugs ([5] of the Tribunal's reasons), and was asked about those in cross-examination ( [41] - [43]). It was specifically put to her that: (1) she was a 'well established drug supplier' by 1999; (2) her lease was terminated because she 'used the premises for the storage, packing and/or supply of prohibited drugs'; (3) that she dealt drugs from the home she had rented; and that (4) the reason she had not left Airds was because that was where she dealt her drugs from and her suppliers were. Detective Inspector Galea's evidence was consistent with matters put to the applicant in cross-examination. His statement, which was served on the applicant prior to the hearing, had claimed the applicant was a 'low to mid level illicit drug supplier of cannabis'. Moreover, Detective Inspector Galea was cross-examined on the applicant's behalf, asked several questions stating that he had said the applicant was 'head of the drug trade', and ultimately clarified that he had said the applicant was a 'significant player'. Plainly the applicant understood the allegation to be that she was a significant drug dealer from the cross-examination on her behalf.
66 As the evidence from Detective Inspector Galea was consistent with what had earlier been put to the applicant and he was specifically cross-examined on it on the applicant's behalf, there cannot, the Minister submitted, be any unfairness in this case. The Minister further observed that it was obvious that the applicant would deny being a significant drug dealer in Airds because she had previously denied dealing drugs at all; and her representative in closing submissions specifically denied that the applicant was a 'significant player in the drug trade', or indeed a dealer at all. The Minister submitted that the applicant did not need to be specifically recalled to deny the allegation herself; the rule in Browne v Dunn does not apply to inquisitorial tribunals: Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57] per Gummow and Heydon JJ; and that there was no unfairness in the Tribunal's reception of the evidence from Detective Inspector Galea.