Minister for Immigration & Multicultural Affairs v Capitly

The Decision Appealed from 9 The primary judge found that Mr Capitly had become ill with influenza on about 2 August, was ill at home during the weekend and, although somewhat better on the Sunday: "… was still very ill on the Monday with 'a runny nose … severe headache … aching joints' and also '[h]igh fever, my temperature was quite high'. It was 'raining very hard' and there were 'strong winds'." 10 He found also that Mr Capitly, although at a disadvantage in English, was an essentially truthful witness. He found that he had telephoned the Tribunal attempting to contact the person named in the letter advising him of the hearing date but had spoken to someone else ("the unknown person"). Mr Capitly's evidence of the telephone calls was accepted. 11 His Honour then pointed to the probability that the person to whom Mr Capitly had spoken intended to refer the request for adjournment to the Tribunal member. He inferred that the Tribunal member had been spoken to by the unknown person and had refused the adjournment because it was too late. His Honour continued: "In the absence of evidence from anyone at the tribunal to the contrary (and no application was made to me for an adjournment to call any such evidence), I am entitled, if I think it probable, to rely on the inference: Jones v Dunkel (1959) 101 CLR 298. In my opinion, it is to be inferred that the tribunal member was advised of the position, and did decide to proceed with the matter in the absence of the applicant." 12 In the result his Honour found in favour of Mr Capitly. He said that, because the Tribunal had failed to set out the reasons for refusing the adjournment it had erred in law pursuant to s 430(1) of the Migration Act (1958) ("the Act"). Alternatively, his Honour found that there had been a breach of s 425(1). The Tribunal's decision was set aside and remitted to the Tribunal for redetermination according to law.

Submissions of Appellant 13 Senior counsel for the Minister submitted that the primary judge had erred in that: 1. his Honour had used second hand hearsay evidence; 2. the findings of fact made by his Honour were not in accord with the evidence; 3. his Honour wrongly applied the rule in Jones v Dunkel; 4. there was no breach of s 430(1) of the Act by omitting reference to any request for an adjournment if such request had indeed been made; 5. the refusal of an adjournment was not a reviewable error having regard to the provisions of the Act; 6. in any event, attendance or non-attendance of Mr Capitly would have made no difference to the outcome.

The Statutory Framework for Judicial Review of Decisions of the Refugee Review Tribunal 14 Division 2 of Part 8 of the Act is concerned, inter alia, with this Court's jurisdiction to review decisions of the Refugee Review Tribunal. The grounds upon which this Court may review such decisions are set forth in s 476(1). Those grounds are quite limited. However they include relevantly the following: "(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed." 15 Breach of natural justice or unreasonable exercise of a power by the Tribunal are excluded as specific grounds for review: s 476(2). We note at this point a submission that the decision of the Full Court of this Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 was wrongly decided. That case, amongst other things, considered the provisions of s 420 of the Act requiring the Tribunal to act according to substantial justice and the merits of the case and its interaction with the exclusion of natural justice as a ground of review referred to in s 476. That case should, in our view, be followed if relevant. It is presently on appeal to the High Court of Australia where the appeal has been heard but not decided. However, it is unnecessary in the present case, to consider the application of s 420 or, for that matter, the application of Eshetu. 16 Among the procedures required to be observed by the Tribunal in connection with the making of a decision is s 425. That section and its related s 424 provide as follows: "424 (1) If, after considering the material contained in the documents given to the Registrar …the Tribunal is prepared to make the decision … that is most favourable to the applicant, the Tribunal may make that decision or recommendation without taking oral evidence. … 425 (1) Where section 424 does not apply, the Tribunal: (a) must give the applicant an opportunity to appear before it to give evidence; and (b) may obtain such other evidence as it considers necessary. (2) …" 17 The Tribunal is empowered for the purposes of review to take evidence on oath and may adjourn the review from time to time: s 427(1). When it makes a decision it is obliged to prepare a written statement: s 430. That statement must, in accordance with s 430(1), set out the Tribunal's decision, its reasons, its findings on any material questions of fact and refer to the evidence or other material on which its factual findings were based. 18 There was no suggestion, nor could there be, that failure to give an applicant an opportunity to appear before it to give evidence, contrary to s 425(1)(a), would not constitute a ground for setting aside a decision of the Tribunal under s 476(1)(a). Likewise a non-compliance with the obligation to give reasons under s 430 would fall within the same section. The Minister's submissions were rather that there had neither been a failure to comply with s 425 or a failure to give reasons for decision under s 430. 19 We turn now to deal with the Minister's submissions.

Hearsay Evidence and Inference 20 The submission that Mr Capitly's evidence of the conversation he had with an unnamed representative of the Tribunal constituted hearsay evidence prohibited by s 59(1) of the Evidence Act 1995, ("the Evidence Act") is wholly misconceived. 21 Evidence given by a witness of what was said to him by another person not called is not necessarily hearsay evidence. In Rattan v the Queen (1972) AC 387, in a passage cited with approval by Wilson, Dawson and Toohey JJ in Walton v the Queen (1989) 166 CLR 283 at 301, Lord Wilberforce observed : "The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called, is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on 'testimonially', ie, as establishing some fact narrated by the words." 22 In Walton, Mason CJ at 288 said: "The hearsay rule applies only to out-of-court statements tendered for the purpose of directly proving that the facts are as asserted in the statement. Generally speaking, evidence of out-of-court statements relied on for another purpose is not excluded by the rule." 23 We would interpolate here that no objection was made to the questions initially asked by the learned primary judge which elicited the evidence in question, and indeed the conversations were probed by counsel for the Minister appearing before the learned primary judge in cross examination. 24 The Evidence Act does not affect the principles stated in Rattan and Walton as quoted above. It does not preclude the admission of out-of-court statements where a relevant fact is whether the statement was made. Thus s 59(1) of the Evidence Act which sets out the general exclusory rule for hearsay evidence provides: "Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by their representation." 25 On its face, s 59 would seem to permit evidence of a representation made in an out-of-court statement by a person not called to give evidence which proves the existence of a fact where the person did not intend to assert that fact by the representation. That s 59 is expressed in this way would seem to originate from the comment in Walton that evidence ofan out-of-court telephone statement by a child greeting a person who the child refers to as "Dad" might in some cases have constituted circumstantial evidence from which the identity of the person spoken to by the child could be inferred. No doubt it is this which has prompted the learned authors of the "Commonwealth Evidence Law" to say that an unintended implied assertion is not itself excluded from evidence under the statutory hearsay rule. Thus, if it could be said that the words used by the other party to Mr Capitly's telephone conversation implied a representation that that person had spoken to the Tribunal member, nothing in s 59 would prevent either inferring the representation, or its admission into evidence. 26 Senior counsel does not, it must be said, quarrel with the admissibility of the terms of the conversation. The complaint made on behalf of his client is that the learned primary judge made an impermissible use of the evidence in inferring that the unknown party to the telephone conversation had spoken to the Tribunal member charged with the task of hearing the review, and had thus represented that that person had refused the application for adjournment on grounds that it was made at a point too late. He complains that any inference that the Tribunal member had been spoken to was pure conjecture. He points to the fact that no material in evidence including what purported to be the departmental file made record of any such conversation. 27 Clearly, the terms of the conversation itself could not prove the existence of any factual representation which that telephone conversation recorded, at least where the representation was intended to be asserted. It is very difficult indeed to see that the terms of the telephone conversation on the part of the unknown party to it contain a representation made by that unknown person that he had consulted the Tribunal member. Once it is clear that the statement itself is admissible, there is no reason in principle to conclude that, like any other evidence, it may not form the basis for an inference. So much was decided under the common law hearsay rule in Walton: see per Mason CJ at 288, per Wilson, Dawson and Toohey JJ at 302. 28 We are firmly of the view that the requirement that Mr Capitly call back later, coupled with the statement that it was too late for an adjournment to be granted, leads to an inference that the unknown person whom Mr Capitly telephoned consulted someone else, most probably the Tribunal member delegated to hear the review. This is not mere conjecture. It is a conclusion based on experience of human behaviour. We gain no assistance from the absence of any notation on the departmental file. There is no evidence that this is the totality of the file. There is no evidence of any practice in the Tribunal of recording conversations of this kind in a file. 29 Although, in our view, there is no need for the application of the rule in Jones v Dunkel, we do not think that the learned primary judge in any way erred in applying it. Once an inference was open that the unknown person at the Tribunal had spoken to the Tribunal member who had refused the application for adjournment, the failure on the part of the Minister to call the Tribunal member, with or without leave, (or seek an adjournment to enable evidence to be called) made the inference one that could more readily be drawn. The Minister's submission really depends not upon any wrong application of the rule in Jones v Dunkel, but rather upon the argument that the initial inference could not, or should not, be drawn. As we are of the view that it not only could be drawn, but was the most probable inference to draw, it is clear that there was no error attendant upon the primary judge's decision. 30 The submission that the findings of fact made by the primary judge were either not open or should not have been made cannot be sustained. We have earlier set out the evidence. It is obvious that there are some marginal variations in the various accounts given by Mr Capitly of his illness and particularly his condition on the day the review was to take place. However, his Honour found Mr Capitly a truthful witness and, given his problems in English, these variations can hardly be said to be material.

Failure to give Mr Capitly the Opportunity to Appear and Give Evidence 31 The legislative direction that the Tribunal give an applicant an opportunity to appear before it to give evidence in circumstances where a decision might be unfavourable to the applicant if dealt with only on the papers is a central feature of a fair system of administrative merits review. For example, the giving of an unreasonably short notice of a hearing date could operate to deprive an applicant of a real opportunity to appear before the Tribunal to give evidence: Budiyal v Minister for Immigration and Multicultural Affairs (Tamberlin J, 20 March 1998, unreported) and thus operate unfairly to the applicant. In that case his Honour said, in a passage cited by the learned primary judge: "The consequence of the procedure adopted in the present case is that an important statutory right is taken away from an applicant without reasonable notice. … The content of the procedural requirement that the applicant be given 'an opportunity to appear before it to give evidence' is an objective one which must ultimately be decided by the Court. … On a proper construction of the provision there must be an implication that the opportunity provided is a reasonable one." 32 We agree. 33 It was submitted on behalf of the Minister that the Tribunal had discharged its obligation to give Mr Capitly the opportunity to give evidence before it by forwarding to him the letter of 8 July advising him of the proposed hearing date and his right to give oral evidence. It was said that s 425(1) is concerned only with the acts of the Tribunal and not with anything that might thereafter happen to an applicant. Indeed the submission appeared to go so far as to say that, once an opportunity to appear had been afforded, that was the end of the matter. That submission cannot be accepted. 34 It is no doubt true that in the context of the making of a gift of property, a gift once made is complete and cannot be rescinded. But the meaning of any word such as "give" must be determined in accordance with its context. In the present context an opportunity to give evidence is not given once and for all by the notification to an applicant of a hearing date in the future. The opportunity must be a continuing opportunity and take account of the circumstances which from time to time exist, up until the opportunity is either availed of or not. For example, if an applicant who had received a letter such as that sent to Mr Capitly on 8 July 1997 had been severely injured in a car accident so that he could not attend the hearing on the day on which it was scheduled, he could hardly have then relevantly been given an opportunity to appear before the Tribunal to give evidence. That opportunity is one which must exist throughout the period until review, including the date on which it occurs. 35 In our view an applicant who is sick and cannot attend a hearing is not relevantly afforded an opportunity to appear to give evidence where the Tribunal refuses to grant an adjournment. This is not to say that the Tribunal is under any obligation to grant an adjournment on the basis of a mere allegation of sickness. There is no reason why the Tribunal must accept an allegation of this kind uncritically. It is entitled to require medical evidence if it believes that there is reason to doubt the truth of the allegation or otherwise to test it. An argument that so to hold would open the floodgates to applicants seeking adjournments for the purposes of delaying a hearing is without foundation. It will be ultimately a factual matter whether, in all the circumstances, an applicant has been given a real opportunity to appear before the Tribunal to give evidence. In the event that there is any contest and no adjournment is given, the question is one which will fall to be decided by the Court, which will consider all the circumstances, including any factors which support the Tribunal's refusal to grant an adjournment application. 36 In the present case the primary judge has found, and there is no error attendant in that finding, that on the day of review the applicant was ill and in circumstances where he would need to travel in severe weather conditions. He sought and was denied an adjournment in circumstances where the denial of that adjournment operated to negate his opportunity to appear before the Tribunal to give evidence. It is for these reasons that the Tribunal can properly be said to have failed to comply with the procedures laid down in s 425(1). In the result its decision must be set aside and the application for review remitted to the Tribunal for determination according to law. It follows that the appeal should be dismissed.

Failure to comply with Section 430 37 As has already been noted, his Honour found also for Mr Capitly on the ground that the Tribunal had failed to set out relevant reasons and findings concerning the adjournment application. It was submitted that the provisions of s 430 are not concerned with decisions to grant or refuse adjournments but are confined to matters central to the ultimate question to be determined by the Tribunal. Reference was made to Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and Jayasinghe v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 532 per Goldberg J and Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322, cases concerned with the meaning of the word "decisions" where the central jurisdiction is conferred upon the Court to review decisions but not factual matters determined on the way to the making of the ultimate decision. The argument would require a detailed examination of s 430(1) of the Act and Division 2 of Part 8. Given our conclusion that the appeal should be dismissed because of a failure on the part of the Tribunal to comply with s 425(1) it is unnecessary in the present case to deal with the question.

Whether remittance to the Tribunal would be futile 38 Although there is nothing in the notice of appeal to suggest that the Minister intended to argue that the orders made by the Tribunal should be permitted to stand, notwithstanding that the grounds of judicial review under s 476(1)(a) of the Act had been made out, senior counsel submitted at the outset of the appeal that it would be futile for the Court to remit the matter to the Tribunal for determination having regard to what is said in the Tribunal's decision. In our view this submission, even if open to be made without leave is misconceived. The Tribunal itself observed that the failure of Mr Capitly to attend left it in a position where it could not test his claims. Certainly in part the Tribunal found against Mr Capitly because it did not consider his claims to be plausible. It was not convinced that he had a fear of persecution let alone that there was any real chance of persecution should he return to the Philippines. It suffices to say that factual findings of this kind depend upon the evidence adduced. It cannot be denied that these findings of fact could have been affected by evidence which Mr Capitly might have given. Once it is accepted that the failure to give Mr Capitly an opportunity to present evidence might affect the outcome it cannot be said to be futile to remit the matter to the Tribunal. 39 The appeal should be dismissed with costs. I certify that the preceding thirty nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox and Hill.

REASONS FOR JUDGMENT MADGWICK J: 40 I agree with the conclusions of Wilcox and Hill JJ and with their reasons, subject to one minor exception. 41 There was, as their Honours say, no need for application of the rule in Jones v Dunkel. It is accordingly, in my opinion, unnecessary to express a view as to whether the learned primary judge erred in applying the rule and I express no such view. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Counsel for the Respondent: P. Roberts SC T. Reilly

Solicitor for the Respondent: Australian Government Solicitor