Forster v Minister for Immigration and Border Protection

Procedural Fairness 17 Mr Seymour of counsel, who appeared pro bono for Ms Forster, developed Ms Forster's argument as follows. First, the submissions which had been prepared on behalf of the Minister at trial identified that the issue of whether Ms Forster should be believed would be a matter for cross-examination. Mr Seymour submitted that neither during that cross-examination nor in the Minister's final submissions did counsel for the Minister put that her account of events was confabulated. The Minister's case never went as far as to suggest that her evidence about her dealing with Danny were deliberately untrue, only that she was confused about the series of events. It was therefore procedurally unfair for the trial judge to have concluded, as he did, at [5]-[7] in these terms: '5. The applicant was cross-examined and in that regard, the applicant did not impress me in relation to being a witness of truth in relation to the events that occurred concerning the handing of documents to officers of a place in which she was then imprisoned. Materially, it is apparent in the present case that the applicant took steps on 23 February 2017 after the 28 day period had expired to have the representations transmitted to the Minister. That step is entirely consistent with the applicant understanding that no transmission had taken place to date. 6. The applicant gave evidence that she did not receive any transmission in relation to the sending of any document. The applicant asserted she made repeated attempts to get someone to take and transmit the document. I do not accept that any officer named Danny took the documents on 30 January 2017. The applicant gave inconsistent evidence about assertions of having provided a document to Danny earlier than 30 January 2017. 7. The applicant's evidence in this regard is unreliable and the Court does not accept that any document was handed by the applicant to Danny or any other person at the correctional centre by the applicant prior to the expiry of the 28 day period. In these circumstances, the decision in AMK16 v Assistant Minister for Immigration and Border Protection [2016] FCA 1557 is clearly distinguishable. In the circumstances of the present case, it is apparent on the applicant's evidence, that the applicant fully appreciated there had been no transmission of the representations to the Minister prior to the expiry of the 28 day time period.' 18 The finding at [5] was that Ms Forster was not a witness of truth and at [7] that what she had said occurred with Danny had not happened. His Honour's reasoning in the last sentence of [5] was, in short, that if Ms Forster sent her revocation requests on 23 February 2017 this meant that she knew that it had not been sent earlier. 19 The reference in [7] to AMK16 v Assistant Minister for Immigration and Border Protection [2016] FCA 1557 ('AMK16') requires some explanation. AMK16 was a case where it was found that the documents in question had been handed to a State correctional officer and this was found to constitute provision of them to the Minister. In this case, once the trial judge concluded that Ms Forster had not handed the documents to Danny on 30 January 2017 the short fact was that no application for a revocation had been made within time. His Honour's treatment of this was at [8]-[9]: '8. The applicant gave evidence that on receipt of the notice she fully understood the time period of 28 days. Further, Mr Hannan of counsel drew attention to the language of s 256 of the Act. Whilst I accept that the applicant was not in immigration detention at that time, the essence of the reasoning of the learned Perry J was that there was a denial of procedural fairness in circumstances where a person had handed a document to an officer whilst in a position where that person believed the document had been sent. There is no suggestion in the case of AMK16 v Assistant Minister for Immigration and Border Protection [2016] FCA 1557 that there was any understanding by the applicant in that case that the documents had not in fact been transmitted. 9. The evidence in the present case is clear that the applicant appreciated that there had been no transmission within the 28 day period. If I had found that the document had been handed to the officer at the correction centre by the applicant, I would not regard the principle identified in the decision of the learned Perry J as being distinguishable on the grounds identified by Mr Hannan in respect of the language of s 256 of the Act.' 20 The trial judge's concern at [9] to distinguish AMK16 on the basis that Ms Forster was aware that there had been no transmission of the request whereas in AMK16 the appellant had not been so aware is, with respect, confused. The awareness or otherwise of Ms Forster of whether the transmission of the request had occurred was a meaningless inquiry after his Honour had concluded that no request had ever been handed to Danny. 21 However, this confusion on his Honour's part does not assist Ms Forster. On the facts as the trial judge found them there was no doubt her claim had to fail - she had not made the revocation request within time. It was a very short point. 22 The Minister submitted that Ms Forster's argument that she had been denied procedural fairness should not be accepted. The submission, in brief, was that the only issue in the case was whether Ms Forster had handed the document to Danny; she was cross-examined to suggest that she had not and there were plenty of good reasons not to accept her testimony. In short, the correctness of her version of events was expressly up for debate and both sides knew this. 23 Mr Herzfeld in his careful submission developed the point this way: Ms Forster was expressly on notice that the central issue in the case was whether she had handed her request to Danny. In her originating application in the Federal Circuit Court she had expressly contended that she had handed the revocation request to a State correctional officer on 17 January 2017. A subsequent amendment to the originating process then suggested that this had occurred on 30 January 2017. 24 The trial was scheduled for 1 November 2017. On 26 October 2017 the Minister's solicitors wrote to Ms Forster's solicitors indicating that they required her for cross-examination on the contents of her affidavit (which had been affirmed on 5 October 2017). Not only was disagreement by the Minister signalled in that way but in Ms Forster's written submissions delivered in advance of the trial it was clear that her counsel had understood that the key issue in the case was whether her account should be accepted. Thus at paragraph [29] of those submissions it was said 'If the Applicant's evidence is accepted, the representations were made within the legislative time frames'. 25 In the Respondent's written submissions delivered before the trial the Minister expressly denied Ms Forster's allegation that she had delivered the document to Danny ('The Respondent denies that allegation'). Of course, the word denial could have involved several distinct allegations: that Ms Forster's account was false and nothing was handed to Danny; that the account was true but Danny had no authority to receive it; or, perhaps, that it was handed to someone else. Mr Herzfeld properly accepted the inherent ambiguity of a broadly expressed denial. However, he submitted that two other passages in the submission showed that the Minister was expressly signalling that the issue of whether there had been a physical act of delivery to Danny was a live one. The first was at [53] of the Minister's written submissions at trial: 'The onus is on the applicant to prove on the balance of probabilities all facts relevant to the Service of Completed RRF Issue.' 26 Further at [54] the Minister had gone on to submit that his case would be assisted 'if the respondent can adduce evidence to suggest the applicant did NOT serve the Completed RRF on a BWCC Officer'. At [65] the Minister's then counsel framed the issues on the application as including 'On what date, if at all, did the Applicant serve the Completed RRF on a BWCC Officer?' (emphasis added). It was against that backdrop that the Minister had formally submitted at [72] that Ms Forster's contention that she served the form on Danny on or around 30 January 2017 'should not be accepted'. 27 Pausing there it is clear that the Minister was going to seek at trial to demonstrate that Ms Foster's account of what had happened with Danny had not occurred. In that sense it may correctly be said that the Minister was certainly going to advance a case that Ms Forster's account of what had happened with Danny was not correct. However, there were several ways this might have been achieved: by showing that Ms Foster's version could not be correct; by showing that Ms Foster's account was mistaken; or by showing that it was untrue to her knowledge. 28 Mr Herzfeld went on to submit that at the trial itself the Minister ran a positive case that the interaction with Danny had not occurred. There were several elements to the cross-examination in this regard: a contention that Ms Forster might be confused between the documents relating to the revocation and those relating to her state criminal matters; an observation that in correspondence dated 1 June 2017 from the Legal Aid Commission her instructions were recorded and these were that Ms Forster had handed the request to a correctional officer around 17 January 2017 (i.e. not 30 January 2017); and an observation that in the original claim in her originating process she had alleged the date was 17 January 2017. 29 Each of these matters was consistent with a case that Ms Forster was mistaken in her evidence as well as a case that she was lying. 30 Significantly for present purposes counsel then went on to put to her that her account was untrue and this occurred on more than one occasion. During the cross-examination on the Legal Aid correspondence this exchange occurred between counsel and Ms Forster: 'Okay. It's just that there's an email from New South Wales Legal Aid on your behalf in which it asserts - the top of the court book 132, "We are instructed you received notice of cancellation of the visa on 16 January," and you accept that, but it also says that you completed the form the next day, 17 January, and handed it to a representative of the Department of Immigration and Border Protection the next day. That's what your then solicitor said on your behalf?---Correct. But that's not the case, is it? Your case is that it - that took place not on the 13th but on or around 30 January?---Again, it took place on 30 January. Again, it took place. Is - there's no mention in your solicitor's email of any reference to 30 January or any reverence to Danny?---With - sorry, please repeat the question? No reference, sorry? There is - I'm telling you as a fact that there is no reference in that email 30 January to Officer Danny?---Yes. No, there's not. And that's because you never told your New South Wales Legal Aid solicitor about Officer Danny or 30 January, did you?---That's correct. And that's because, it never took place, isn't it?---No, that's not right. Yes, it did.' (emphasis added) 31 Mr Herzfeld submitted that the last question was a direct challenge to Ms Forster's truthfulness regarding whether her interaction with Danny on 30 January 2017 ever took place. Mr Seymour submitted that, in the last question and answer, the reference to 'it' was not necessarily a reference to the interaction between Ms Forster and Danny but could rather be a reference to the previous line, i.e., to not having told the Legal Aid solicitor about Danny. It was submitted, therefore, that the last question was ambiguous and accordingly did not put Ms Foster on notice that her truthfulness was in doubt. I do not think that is an open reading of the exchange. 32 For those reasons, I accept Mr Herzfeld's submission that by the close of the evidence Ms Forster had had squarely put to her that her evidence about the encounter with Danny was not correct and that it had never taken place. 33 In response to this Mr Seymour then drew attention to the High Court's decision Smith v New South Wales Bar Association [1992] HCA 36; 176 CLR 256 at 268 where a distinction was drawn between the rejection of evidence and the conclusion that a lie is being told. The full passage is in the following terms: 'It is necessary to say something as to the finding that the appellant lied in the Court of Appeal. There is a difference between the rejection of a person's evidence and a finding that he or she deliberately lied. In some cases, a rejection of evidence may lead to a finding that that person lied on another occasion. Thus, in the present case, a rejection of the appellant's evidence in the Court of Appeal led to a finding that he lied in the Penrith Local Court on the morning of 11 November 1986. On other occasions, other evidence may be of such a nature or of such weight that, in combination with the rejection of some particular evidence, it will justify a finding that that evidence was fabricated. But, as a matter of logic and common sense, something more than mere rejection of a person's evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence. It is particularly important in disciplinary cases, where the honesty and candour of legal practitioners assume special significance, that the distinction between the rejection of a person's evidence and a positive finding that he or she deliberately lied be observed. The mere rejection of evidence can neither justify a consequence over and above that which properly attaches to the matter charged, nor deprive the person of the benefit of personal considerations which might otherwise be taken into account. The matter was put succinctly, although in a different context, by Cussen J. in Rex v. Richmond: "It would certainly act as a deterrent even to an innocent man giving evidence, especially where there is a strong case against him, if he knew that if the jury does not accept his evidence he may receive a sentence heavier than otherwise would be imposed." A finding that a person deliberately lied when giving evidence is, in effect, a finding of perjury and, thus, it ought not to be made on "the single oath of another man, without any confirmatory evidence".' 34 I take from that passage that the mere fact that a witness's evidence has been shown to be incorrect does not, without more, show it to have been given falsely. 35 The submission which was made in closing submissions at trial by counsel for the Minster was this: 'In terms of credit, in my submission, respectful submission, the applicant was, with respect, not a good narrator of events in chronological order. She chopped and changed as to whether she tried to hand the documents to officers, including Danny, before 30 January. Sometimes she said, "Yes," sometimes she said, "No," perhaps, I would suggest, because she understood the significance of Danny changing his mind. Also, her explanation that she wasn't aware of procedures or protocols might be true in terms of using procedures or words - procedures or protocols, but it doesn't sit well that the substance of what she understood to be the position, for example, set out in the second sentence in paragraph 8 of her affidavit. So in my respectful submission, you should not accept the applicant as a witness of credit sufficient to discharge the onus on her to satisfy you, your Honour, on the balance of probabilities that the document was handed to and accepted by Officer Danny on or around 30 January 2017. Your Honour, I otherwise rely upon my written submissions.' (emphasis added) 36 In my opinion, this sufficiently flagged that her evidence ought not be accepted because she lacked 'credit'. Given the nature of the cross-examination I think that it was open thereafter to find that her evidence about Danny was false. Accordingly, the trial judge's conclusion to that effect did not involve a denial of procedural fairness.

Unreasonable Fact Finding 37 Next Ms Forster submitted that the trial judge's conclusion that she was not a witness of truth was itself unreasonable. The point was that it was not reasonable so to conclude where the issue explored in cross-examination was really only that her version was not corroborated by any contemporaneous records. The cross-examination by the Minister's counsel is set out above at [30]. The absence of corroborative material disclosed in that cross-examination was the letter from the Legal Aid Commission which referred to 17 January 2017 rather than 30 January 2017. 38 To that should be added some matters elicited by the trial judge when he questioned Ms Forster: 'HIS HONOUR: Sorry, Mr Hannan. Ms Applicant, can I just ask you some questions. Ms Hanna [sic], you appreciated from the notice that you received that representations had to be made within 28 days. Is that right?---I beg your pardon sorry? You appreciated from the notice that you received on 16 January 2017 that any representations you wished to make had to be made within 28 days?---Yes, your Honour. Yes. And you appreciated that that was up in lights in the letter as a timeframe that had to be complied with?---Yes. Correct In those circumstances, if you were taking steps to send in representations, why wouldn't you take steps to ensure that you were given a copy of a transmission record in relation to any document you handed to any other person?---I did ask for that transmission record but I - I - it was never received. It was never - - - When did you ask for the transmission record?---That was two - maybe three weeks - after handing the paperwork over to one of the officers, asking for transmission and a confirmation. Why didn't you immediately, after you appreciated you didn't have a transmission record, ask for it to be sent again?---I did, your Honour. To whom?---Many times. And I was told to put a request in to ask many times. So you're telling me that you appreciated that it hadn't been transmitted- - - ? ---Yes. - - - and you made requests - - -?---Yes. - - - for it to be sent because you hadn't received a transmission record?---I actually - yes.' 39 To the material identified above there can also be added the absence of any transmission record. 40 Mr Seymour submitted that when one took account of the fact that the evidence before the judge consisted only of the absence of corroborative evidence together with the additional fact that the Minister had not called Danny to give evidence, it should be concluded that the trial judge's finding was unreasonable. To be clear that submission was directed to the finding that Ms Forster was lying about giving the documents to Danny. 41 By placing the argument on the legal infrastructure of unreasonableness Mr Seymour invoked the High Court's decision in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 ('Li'). I do not think, however, that the principle in Li can assist Ms Forster on this appeal. The principle in Li is a ground of judicial review available in proceedings to quash what are usually administrative rather than judicial decisions. There are some circumstances in which judicial decisions may be subject to judicial review proceedings. However, given that the current proceeding does not involve an attempt judicially to review the Federal Circuit Court's orders it is not necessary to explore that larger topic further. 42 Since Ms Forster's appeal is not a judicial review proceeding, Li can have no application. Instead, Ms Forster must bring herself within the well-known principles governing when the findings of a judge based on the demeanour of witnesses can be reviewed by an appellate court. 43 An appellate court should not interfere with such findings unless they are glaringly improbable or shown to be wrong by incontrovertible fact or uncontested testimony: Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 331 ALR 550; at 558-559 [43] and the cases therein cited, including in particular Warren v Coombes [1979] HCA 9; 142 CLR 531; Fox v Percy [2003] HCA 22; 214 CLR 118 and State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 73 ALJR 306. Underlying this principle is the recognition of the very considerable advantages a trial court has over an appellate court when it comes to considering the truthfulness of witnesses whom the trial judge has seen and whom the appellate court has not. This is, in part, to give recognition to the subtle effects of demeanour which the transcript cannot adequately capture. 44 Whilst I would certainly accept that the trial judge's conclusion that Ms Forster was lying was unnecessary (he could have said simply that he did not accept her evidence), I cannot say that it is glaringly improbable and it is certainly not contrary to incontrovertible facts or uncontested testimony. It is not open to this Court, therefore, to conclude that his Honour erred in fact in finding Ms Forster was not a witness of truth.

Apprehended Bias 45 Ms Forster submitted that the trial judge had intervened on several occasions to ask her about her state of mind in relation to whether the request had been transmitted to the Minister. I have set out one passage above at [38]. Another was at T21: 'HIS HONOUR: Ms Forster, is the reason why you made many requests was that you appreciated that it hadn't been transmitted?---Yes.' 46 Both sets of questions appeared to be related to his Honour's view that he could distinguish AMK16 if he found that Ms Forster was aware that the request had not been transmitted to the Minister. His Honour then pursued this thought in argument during the Minister's closing submissions: 'HIS HONOUR: Well Mr Hannan, the critical part of the reasoning in Justice Perry's judgment appears to be the assumption that the documents were handed to an officer to send to the department. The - the implicit finding in that regard is one which has been addressed by the judge where, in paragraph 38, there's a reference to - gave - his wife gave him the documents in question and he provided them to a Sercos officer to send to the department. On the evidence of the applicant, it appears that, at no stage - which is why the applicant continued - did the applicant believe that the documents had been sent. That's entirely consistent with no one having accepted the documents for sending. That seems to me to distinguish that case, quite apart from your point in relation to section 256. What else do you wish to say, Mr Hannan?' 47 This was not an argument that the Minister sought to advance. His Honour was, however, persuaded by his own argument and accepted it at [7]-[9]: '7. The applicant's evidence in this regard is unreliable and the Court does not accept that any document was handed by the applicant to Danny or any other person at the correctional centre by the applicant prior to the expiry of the 28 day period. In these circumstances, the decision in AMK16 v Assistant Minister for Immigration and Border Protection [2016] FCA 1557 is clearly distinguishable. In the circumstances of the present case, it is apparent on the applicant's evidence, that the applicant fully appreciated there had been no transmission of the representations to the Minister prior to the expiry of the 28 day time period. 8. The applicant gave evidence that on receipt of the notice she fully understood the time period of 28 days. Further, Mr Hannan of counsel drew attention to the language of s 256 of the Act. Whilst I accept that the applicant was not in immigration detention at that time, the essence of the reasoning of the learned Perry J was that there was a denial of procedural fairness in circumstances where a person had handed a document to an officer whilst in a position where that person believed the document had been sent. There is no suggestion in the case of AMK16 v Assistant Minister for Immigration and Border Protection [2016] FCA 1557 that there was any understanding by the applicant in that case that the documents had not in fact been transmitted. 9. The evidence in the present case is clear that the applicant appreciated that there had been no transmission within the 28 day period. If I had found that the document had been handed to the officer at the correction centre by the applicant, I would not regard the principle identified in the decision of the learned Perry J as being distinguishable on the grounds identified by Mr Hannan in respect of the language of s 256 of the Act.' 48 The position which had been arrived at was thus: (a) at [7] his Honour found that the request was not handed to Danny. Once his Honour found that that was the end of the case; (b) his Honour then sought at [8] to distinguish AMK16 on the basis that in that case the applicant did not know that the request had not been transmitted by the Serco officer to whom it had been handed; (c) his Honour then concluded at [9] that in this case Ms Forster did know that the revocation request had not been transmitted to the Minister. What his Honour had by then found was that Ms Forster did not hand the request to Danny but she knew that Danny had not transmitted it to the Minister; (d) in the alternative his Honour found in the second sentence of [9] that if Ms Forster had handed the request to Danny then he would not regard AMK16 as distinguishable on the basis advanced by the Minister. 49 Whatever else this demonstrates, it does not demonstrate apprehended bias. What is shown instead is that his Honour's pursuit of something relating to AMK16 which he plainly thought relevant. As the Victorian Court of Appeal observed in GEM v The Queen [2010] VSCA 168 at [43]: '[C]ourts have generally been reluctant to criticise trial judges for actual or apprehended bias by having interfered too much in the eliciting of evidence from witnesses, or for otherwise taking too active a part in the presentation of the case. A statistical count of the total number of interventions, or even the number of interventions against one side only, is unlikely to be decisive. What will ordinarily be needed to show apprehended bias is an overall level, or tone of intervention, which is quite out of the ordinary such that it demonstrates an appearance of pre-judgment, hostility, or partiality.' 50 In this case, his Honour was exercised by the AMK16 issue and was entitled to pursue it. It may be accepted that the point was his Honour's own point and was not pursued by the Minister. It is also true that his Honour was ultimately persuaded by his own point - an example, perhaps, of what Sir Robert Megarry referred to as the 'perils of self-persuasion' (see Megarry, Sir R, "Temptations of the Bench" (1978) 16 Alberta Law Review 406 at 410). But his Honour's interventions were relatively minor. I think it unwise to do what the trial judge did in this case precisely because it provokes arguments such as those presently pursued on this appeal. But I do not think that the fair-minded lay observer would think, as a result of his Honour's interventions, that he would not bring an impartial mind to the case. Being impartial does not require one not to have a view. Nor is it shown merely because the view happens largely to be irrelevant.

Adequacy of Reasons 51 Finally, Ms Forster submitted that his Honour's reasons were inadequate because they did not explain why he had found Ms Forster not to be a truthful witness. Ms Foster relied on Smith v New South Wales Bar Association [1992] HCA 36; 176 CLR 256 at 268 to argue that 'something more' than mere rejection of her evidence was required for his Honour to make a finding of untruthfulness. 52 I do not think this is a justified criticism. The question of adequacy is not directed to whether the reasons are right, persuasive or wrong. It is instead directed to whether they have been stated with sufficient clarity to be understood and, if necessary, appealed from. 53 I think the trial judge's reasons were sufficiently clear. He did not believe Ms Forster because she made a revocation request after the 28 day period had expired. His Honour regarded that as being inconsistent with her having made the request inside that period. He also thought that she had given inconsistent evidence about Danny. His Honour did not say what that evidence was. But the transcript to which this Court was taken shows that she did give inconsistent evidence about Danny. For example, she originally claimed to have handed the documents to Danny on 17 January but then changed this to 30 January; a letter written by the Legal Aid Commission on her behalf suggested that she had told it that she had handed the request to a Federal immigration official on 17 January; that Danny had accepted the request on 30 January but had refused it before that date; and that she had asked Danny on an occasion prior to 30 January but then said she had only asked him on 30 January. 54 In that circumstance, the reasons were sufficient to permit Ms Forster to be able to identify errors in them.

Conclusion 55 Leave to appeal out of time should be granted but the appeal should be dismissed with costs. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

PERRY J: 56 I have had the benefit of reading Justice Perram's draft reasons for judgment. I agree with his Honour's reasons and proposed orders. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.

O'CALLAGHAN J: 57 I agree with Perram J. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.