23 FCR 162/20 ALD 315

Administrative Law - Evidence - whether unverified statement under s.13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) admissible - whether self-serving - whether part of the res gestae

Administrative Law - administrative decisions (judicial Review) Act 1977 (Cth) - s.13 - nature of s.13 statement

Administrative Law - Practice and Procedure - s.16(1) ADJR Act - whether decision void or voidable - whether trial judge failed to exercise discretion under s.16(1).

Practice and Procedure - order 54 r.8 federal court rules - Court may dispense with cross-examination of decision-maker in judicial review proceedings.

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.13, 16(1)

Migration Act 1958 (Cth) - ss.38, 39

Counsel and Solicitors Mr D Bennett QC and Mr B Skinner

for Appellant: instructed by Australian

Government Solicitor

Counsel and Solicitors Mr C Stevens and Mrs P Sharp

for Respondents: instructed by Messrs Craddock

Murray and Neumann

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

I have had an opportunity to read the reasons for judgment prepared by French J. His Honour has dealt fully with the facts of the case and I adopt his Honour's comments thereon.

2. There are two issues, first whether the learned trial judge was in error in rejecting a tender by counsel for the Minister of what was described as "a section 13 statement" and, secondly, whether the trial Judge was in error in setting aside the decisions under review "as from the date of those decisions".

3. Because an application for a writ of certiorari involved the consideration of the legality of a decision having regard solely to the material set out in "the record", courts from time to time rejected evidence as to the reasons lying behind the challenged decision. See e.g. Baldwin and Francis Ltd v. Patents Appeal Tribunal and Ors (1959) AC 663 at pp 678-9. As Denning L.J. pointed out in R. v. Northumberland Compensation Appeal Tribunal; ex parte Shaw [1951] EWCA Civ 1; (1952) 1 KB 338 at p 352, the view was that the record had to set out the adjudication but need not set out the reasons therefor nor the evidence. The reasons for decision did not form part of the record unless the decision-making tribunal had chosen to incorporate them. In later cases, it was nevertheless found convenient to tender affidavits which raised a point of law for the determination of the Court. Denning L.J. said, at p 353, that the explanation was that the affidavits were treated by consent as if they were part of the record. Over the years, a more flexible approach evolved. See, eg., R. v. Southamptom Justices; ex parte Green (1976) 1 QB 11. In R. v. Supplementary Benefits Commission; ex parte Singer (1973) 1 WLR 713, the reasons for decision set out in a letter communicating the decision were treated as part of the record.

4. In this country, the Commonwealth administrative law package, comprising the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") and the Ombudsman Act 1976 (Cth), the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") and the Freedom of Information Act 1982 (Cth), placed emphasis upon the reasoning process lying behind a decision. The ADJR Act specifically removed the requirement that the error appear on the record of the decision. The legislative package emphasised the need for reasoned decision-making and made available to affected persons means of ascertaining what the reasons for a decision had been. For our purposes, it is sufficient to refer to s.13(1) of the ADJR Act which provides:-

"Where a person makes a decision to which this

section applies, any person who is entitled to

make an application to the Court under section

5 in relation to the decision may, by notice

in writing given to the person who made the

decision, request him to furnish a statement

in writing setting out the findings on

material questions of fact, referring to the

evidence or other material on which those

findings were based and giving the reasons for

the decision."

See the exposition of this provision by Ellicott J. in Burns v. Australian National University [1982] FCA 59; (1982) 40 ALR 707 at pp 710-712, 716.

5. On the basis that the reasons for a challenged decision could ordinarily be obtained, s.5 of the ADJR Act appropriately expressed as grounds of review that the decision taken involved an error of law, that an irrelevant consideration was taken into account, that there was a failure to take into account a relevant consideration, that the power was exercised for a purpose other than that for which it was conferred and so on. Such grounds could be effective grounds of challenge when there was a ready means of ascertaining what had been taken into account in making the decision under challenge. Section 13 of the ADJR Act did not impose an obligation upon a decision-maker to give reasons at the time the decision was made. It simply provided a means by which a person affected could subsequently obtain from the decision-maker a statement of the reasons. The Freedom of Information Act ("the FOI Act") assisted this disclosure by enabling access to be obtained to documents in the possession of a department or a prescribed authority of the Commonwealth.

6. The Federal Court of Australia has exclusive jurisdiction to hear applications under the ADJR Act and Order 54 of the Federal Court Rules deals specifically with them. Rule 1 applies the general rules of Court. Rule 2 specifies the form of application. Rule 3 reads:-

"(1) On the filing of an application for an

order of review or as soon afterwards as is

practicable, the applicant shall file copies

of such of the following documents as are in

his possession -

(a) a statement of the terms of the decision

the subject of the application; and

(b) a statement with respect to that decision

furnished to the applicant pursuant to

section 13 of the Administrative

Decisions (Judicial Review) Act 1977 or

section 28 of the Administrative Appeals

Tribunal Act 1975, or any other statement

furnished by or on behalf of the person

who made the decision purporting to set

out findings of facts or a reference to

the evidence or other material on which

those findings were based or the reaons

for making the decision,

unless a copy of that document has been filed

previously in the proceeding."

Rule 4 deals with objections to competency to an application. Rule 5 provides that the Court may give directions as to the serving of a copy of the application upon the Attorney-General and for the giving of notice of the application to such persons or classes of persons as the Court directs. Rule 6 provides for applications to dismiss the application on the basis, e.g., that no reasonable basis for the application is disclosed. Rule 7 provides that persons seeking dismissal of the application on a discretionary ground should apply promptly for such dismissal. Rule 8, introduced by Statutory Rule 50 of 1989, provides:-

"Notwithstanding Order 14 rule 9, the Court may

dispense with the attendance for

cross-examination of a person making an

affidavit and may direct that an affidavit be

used without the person making the affidavit

being cross-examined thereon."

7. In the hearing before the trial Judge, counsel for the Minister sought to tender what he described as "a section 13 statement". His Honour rejected the tender.

8. I do not read Order 54, r.3 as dealing with any issue as to admissibility of such a statement at the trial. The rule does not say that. As the rule provides for the filing of a document, I take it that a judge may look at any document filed for an appropriate purpose, such as the management of the case prior to trial. A perusal of the decision and of any reasons that have been filed pursuant to r.3 will enable a judge the better to give directions for the conduct of the proceedings, whether they be on pleadings or by affidavit or by oral evidence, whether notice should be given to the Attorney-General or to any other party, to determine whether the decision was of a nature susceptible of review under the ADJR Act, to decide whether another avenue of review, e.g. review by the Administrative Appeals Tribunal, was available and more appropriate and so on. The rule is thus facultative.

9. The only rule in Order 54 which deals with trial is r.8 which provides that the Court may dispense with attendance for cross-examination and may permit an affidavit to be used although the deponent be not cross-examined. This rule was introduced by Statutory Rule 50 of 1989 to direct attention to the matters which are usually of critical importance in judicial review proceedings, namely, the material that was or ought to have been before the decision-maker when the decision was made, the reasoning process of the decision-maker having regard to those materials and the object and terms of the power to be exercised. Prior to the introduction of the rule, it was common practice for counsel for respondent decision-makers to cross-examine applicants and their witnesses on matters which, if relevant at all, were peripheral to the issues to be resolved and which had relevance only as background information explanatory of the context in which the challenged decision was made. At the same time, it was common for counsel for applicants to insist upon the attendance for cross-examination of busy decision-makers and to cross-examine at length with a view to demonstrating errors in the reasons stated. Such cross-examination was rarely effective and reflected rather the inclination of counsel to base proceedings on oral evidence. Judicial Review proceedings, like appeals from the Administrative Review Tribunal on points of law, can be and are frequently better dealt with on the papers, that is to say, having regard to the relevant legislation, to the material that was or ought to have been before the decision-maker and to the reasons for decision stated in writing by the decision-maker.

10. In the United Kingdom, the practice is that cross-examination of deponents is not permitted without leave. And that leave is granted frugally. In George v. Secretary of State for the Environment (1979) 77 LGR 689, Lord Denning M.R. laid it down that it would be only on rare occasions that the interests of justice would require that leave be given for cross-examination. More recently, in O'Reilly v. Mackman [1983] UKHL 1; (1983) 2 AC 237 at pp 282-3, Lord Diplock enunciated the rule in more liberal terms. After referring to Lord Denning's observations, Lord Diplock said:-

"The facts, except where the claim that a

decision was invalid on the ground that the

statutory tribunal or public authority that

made the decision failed to comply with the

procedure prescribed by the legislation under

which it was acting or failed to observe the

fundamental rules of natural justice or

fairness, can seldom be a matter of relevant

dispute upon an application for judicial

review, since the tribunal or authority's

findings of fact, as distinguished from the

legal consequences of the facts that they have

found, are not open to review by the court in

the exercie of its supervisory powers except

on the principles laid down in Edwards v.

Bairstow [1955] UKHL 3; (1956) AC 14, 36; and to allow

cross-examination presents the court with a

temptation, not always easily resisted, to

substitute its own view of the facts for that

of the decision-making body upon whom the

exclusive jurisdiction to determine facts has

been conferred by Parliament. Nevertheless

having regard to a possible misunderstanding

of what was said by Geoffrey Lane L.J. in Reg.

v. Board of Visitors of Hull Prison, Ex parte

St. Germain (No. 2) (1979) 1 WLR 1401, 1410

your Lordships may think this an appropriate

occasion on which to emphasise that whatever

may have been the position before the rule was

altered in 1977 in all proceedings for

judicial review that have been started since

that date the grant of leave to cross-examine

deponents upon applications for judicial

review is governed by the same principles as

it is in actions begun by originating summons;

it should be allowed whenever the justice of

the particular case so requires."

11. Notwithstanding his Lordship's observations, cross-examination of deponents in judicial review proceedings is not common in the United Kingdom. A recent example where cross-examination was allowed is R. v. Waltham Forest LBC; ex parte Baxter (1988) 2 WLR 407.

12. As Lord Diplock's speech indicates, in a decision to permit or to refuse cross-examination of a deponent, policy issues may be taken into account. Cross-examination may divert the Court's attention away from a strict examination of the materials which ought to have been taken into account by the decision-maker and the decision-maker's examination thereof towards a consideration by the Court itself of the facts and merits of the case. Matters of convenience are also taken into account. As Lord Bridge said in R. v. Home Secretary; ex parte Khawaja (1984) AC 74 at pp 124-5:-

"I understand all your Lordships to be agreed

that nothing said in the present case should

be construed as a charter to alleged illegal

entrants who challenge their detention and

proposed removal to demand the attendance of

deponents to affidavits for cross-examination.

Whether to permit cross-examination will

remain a matter for the court in its

discretion to decide. It may be that the

express discretion conferred on the court to

permit cross-examination by the new procedure

for judicial review under R.S.C., Ord.53 has

been too sparingly exercised when deponents

could readily attend court. But however that

may be, the discretion to allow

cross-examination should only be exercised when

justice so demands. The cases will be rare

when it will be essential, in the interests of

justice, to require the attendance for

cross-examination of a deponent from overseas. If

the alleged illegal entrant applying for

habeas corpus, certiorari or both, files an

affidavit putting in issue the primary facts

alleged against him he will himself be readily

available for cross-examination, which should

enable the court in the great majority of

cases to decide whether or not he is a witness

of truth. If he is believed, he will succeed

in his application. If he is disbelieved,

there will be nothing to stop the court

relying on affidavit evidence, provided it is

inherently credible and convincing, to prove

the fraud alleged against him, even though it

has not been tested by cross-examination".

13. In this country also, the same considerations apply. It would be inconvenient if, the decision-maker being a Minister, the head of a department or a busy senior official, an affidavit from the decision-maker setting out relevant facts could not be received without requiring the deponent to attend for cross-examination unless reasons for cross-examination were shown.

14. The submission made to the trial Judge was that a document said to be a s.13 statement should be received in evidence though it was not verified on affidavit and the maker was not subject to cross-examination. His Honour rejected the tender of the document on the basis that, not being verified, the statement was a self-serving document and that, in any event, there had been a direction that the evidence to be adduced at the trial be on affidavit.

15. In the appeal, counsel for the Minister submitted that there were policy reasons why the statement should have been received. He submitted that it was not in the public interest that decision-makers such as Ministers and heads of departments should be placed in the position whereby, if they wished to support their decision, they must swear an affidavit thus rendering themselves liable to cross-examination. On these policy aspects, it is sufficient to point out that r.8 of Order 54 now deals with them by conferring a discretion upon the Court to receive an affidavit notwithstanding that the deponent does not attend for cross-examination.

16. The document which counsel tendered was tendered merely on the footing that it was a s.13 statement. For the purposes of the appeal, it has been received and marked as an exhibit. It appears that the subject decisions were taken on 28 November 1988 and that a statement was subsequently requested under s.13 of the ADJR Act and was signed on 30 December 1988. The decisions themselves were not accompanied by a statement of the decision-maker's reasons and no reasons for decision were stated orally or in writing at that time, save that the report and recommendations which went to Mr Luu for his consideration concluded and were endorsed by Mr Luu as follows:-

"My decisions in respect of Mr and Mrs Fakaosi

are as follows:

resident status not approved

voluntary departure not approved

Deportation ordered

allocation to Government funds approved"

The report and recommendations as so endorsed are not the document which was tendered as the s.13 statement.

17. Any statement of reasons which under earlier law would have been received in evidence as part of the record of the challenged decision would be admissible in evidence if tendered by the person affected by the decision or by the decision-maker. Such a statement of reasons would be part of the res gestae, a part of the decision-making process. I would accept that, in these present days, in every instance where the decision-making power required the decision-maker to state reasons for decision, whether at the time the making of the decision or on request thereafter, e.g. s.43 of the AAT Act and s.40B(1)(d) of the Broadcasting Act 1942 (Cth), the statement of reasons so delivered would be admissible in evidence, when tendered by either party, as forming part of the decision-making process empowered by the legislation. Just as the reasons which accompany a judicial decision are received as the reasons for the decision, reasons which accompany an administrative decision are evidence of the reasoning process behind that decision.

18. An unverified statement of reasons which does not fall into this category will be admissible by consent or under any of the ordinary rules of evidence as an admission against the decision-maker or as a business record and so on. However, the tender of the statement of reasons before the trial Judge was not founded upon any rule of evidence.

19. As Lord Blackburn said in the Dysart Peerage Case (1881) 6 App Cas 489 at p 503:-

"In England hearsay evidence, that is to say

the evidence of a man who is not produced in

Court and who therefore cannot be

cross-examined, as a general rule is not

admissible at all."

20. It has been the practice of this Court not to receive such a statement, unverified, unless a ground of admissibility is established. It is true that in Sezdirmezoglu and Anor v. Acting Minister for Immigration and Ethnic Affair [1983] FCA 267; (1983) 51 ALR 561 at p 570, Smithers J. said:-

"... I take the view that the statement of

reasons provided by the Minister, unless

effectively challenged, are evidence of the

reasons for his decision."

However, the report of the case does not show by whom the statement was tendered or whether there was an objection to the tender. The decision to which his Honour referred, Givaudin and Co Ltd v. Minister of Housing and Local Government (1967) 1 WLR 400, was a case where the legislation conferring the decision-making power required the decision-maker to "notify his decisions and his reasons therefor in writing". As I have already said, in such a case, such reasons are part of the record, of the res gestae, and are admissible as such. The practice expressed by Smithers J. was not adopted by Sweeney, St John and Morling JJ. in Minister for Immigration and Ethnic Affairs and Anor v. Arslan and Anor [1984] FCA 231; (1984) 55 ALR 361 at p 363.

21. For these reasons, I am of the view that the trial Judge was correct in rejecting the tender.

22. I now turn to the second issue in the appeal. His Honour set aside the decisions under review "as from the date of those decisions", an order having the effect that the decisions were a nullity and, therefore, that the decision subsequently made to retain Mr Faka'osi in detention between 28 November and 2 December 1988 was unlawful. His Honour so declared. The challenge to his Honour's order was made on the basis that his Honour did not recognise that he had a discretion under s.16 of the ADJR Act to set aside the decisions under review and that, in the exercise of his discretion, his Honour ought to have set aside the decisions only as from the date of his Honour's judgment, thereby leaving the decisions on foot to that date and thus rendering the detention lawful.

23. However, his Honour was fully aware of the fact that he had a discretion as to the date from which the subject decision should be set aside and, in exercising that discretion, did so judicially, that is to say, on relevant and proper grounds. His Honour found that the decision for the deportation of Mr Faka'osi was invalid through failure to comply with the rules of natural justice. The ordinary implication was that the decision should be treated as void ab initio and declared to be so or set aside accordingly. See Ridge v. Baldwin [1963] UKHL 2; (1964) AC 40, Wade on Administrative Law, 6th Ed., pp 526-528, de Smith's Judicial Review of Administrative Action, 4th Ed., pp 241-242. I do not say that his Honour was bound by any strict principle of nullity or by earlier authorities distinguishing between void and merely voidable decisions. Section 16 of the ADJR Act overcomes that type of problem. But, in a case where authorities were clear that the decision ordering deportation was a nullity, there was no matter before his Honour which would have justified his Honour in refusing to give effect to that conclusion.

On 28 November 1988 deportation orders were made against two Tongan nationals, Mr and Mrs Faka'osi, who had been in Australia since the end of July 1984. However certain matters were put before the decision-maker which were adverse to them and on which they had no opportunity to comment. On 28 April 1989 for that and other reasons the learned trial judge made declarations that the deportation orders and associated decisions were invalid and set them aside as from the date they were made, namely 28 November 1988. He also declared that the detention of Mr Faka'osi for a period of five days from 28 November to 2 December 1988 was unlawful.

2. The Minister for Immigration and Ethnic Affairs appeals from that decision on what are effectively two grounds. He complains that his Honour wrongly refused to receive in evidence a statement of reasons for the decisions prepared by his delegate under s.13 of the Administrative Decisions (Judicial Review) Act 1977. He also contends that the declaration as to the unlawfulness of Mr Faka'osi's detention was made by his Honour in the erroneous belief that having found the deportation grounding the detention to be invalid he had no discretion but to order such relief.

3. On 31 July 1984 a 27-year-old Tongan national Inoke Taveli Faka'osi arrived in Australia with his 40-year-old wife, Tailiili Taveli Faka'osi and their two children, Mataisi Taveli aged 5 and Lavinia Taveli aged 4. Both children were born in Tonga. Mrs Faka'osi was then pregnant and gave birth to their third child, Mele Fakaola Taveli in Australia on 9 September 1984. Mr Faka'osi's widowed and ailing 71-year-old father, Taveli Uikilifi, had been a permanent resident of Australia since October 1983. His two married sisters, Ofaheanga Tapaatoutai and Sivoki Faingaa, were both Australian citizens living in Brookvale in New South Wales. Upon their entry into Australia Mr Faka'osi and his wife were each issued with temporary entry permits allowing them to remain for three months and subject to the condition that they not undertake any employment without the permission of an authorised officer.

4. On 9 December 1982 Mr Faka'osi's sister, Ofaheanga Tapaatoutai, had applied as a sponsor for his entry into Australia as a permanent resident. On 8 April 1983 that application was refused and Mrs Tapaatoutai was so advised in a letter from the Regional Director of the Department of Immigration and Ethnic Affairs. She was also informed that she could seek a review of the decision by the Immigration Review Panel. In the event it was not until September 1984, when her brother and his family had arrived in Australia, that she lodged an application for review.

5. On 11 October 1984 a representative of the panel's Secretariat wrote advising Mrs Tapaatoutai that it might take several months before the case could be finalised. And in this connection he said:

"It would be most helpful in avoiding unnecessary

delays in finalising your appeal if you do not

enquire about its progress unless, of course, there

are compelling reasons for you to do so."

Subsequently however there was an internal reconsideration of the sponsorship application on the basis of which it seemed that Mr Faka'osi might be accepted for resident status. On 6 December 1984 the Secretary of the Department of Immigration and Ethnic Affairs wrote to Mrs Tapaatoutai saying that "as several changes have occurred in your circumstances it may now be possible to accept a fresh sponsorship from you". A blank sponsorship application form and supporting documents were enclosed. The letter referred to the need to produce a suitable offer of employment for Mr Faka'osi, but warned that he could not work while he had the status of a visitor. The letter concluded:

"It is also essential that he and his family depart

Australia at the expiration of the visit visas,

because a fresh sponsorship can only be accepted

for nominees who are outside Australia."

This implied that the temporary entry permits issued on 31 July 1984 had been extended, although there was no direct evidence to that effect. Mrs Tapaatoutai decided to pursue the suggested option of a fresh sponsorship application. She approached Mr Gregory Dwyer, a solicitor practising in Dee Why and on 20 January 1985 completed the sponsorship application with his help, leaving it with him to lodge on her behalf. Contrary to the advice in the Department's letter of December 1984 he told her that the Faka'osis could remain in Australia until the application had been dealt with. In the event he forgot to send the completed application to the Department and had not sent it when he retired from the Dee Why practice a year later in 1986. In May 1986 he was contacted by his successor in the practice who told him that Mrs Tapaatoutai had enquired about the progress of the application and that he had been unable to find the relevant file. Dwyer then found the signed sponsorship application among papers he had retained from the practice. On 29 May 1986 he sent a letter to the Department pointing out his oversight, enclosing the application and supporting documents, and saying:

"I am not aware whether the matter is still on foot

and stress that the delay which has taken place in

lodging these documents should in no way be

attributed to the applicant."

Neither he nor Mrs Tapaatoutai received any acknowledgement of the letter or the application that accompanied it and there was no evidence of the ultimate fate of those documents. They seemed never to have been considered within the Department. Mrs Tapaatoutai made no further enquiry of the Department. Dwyer had told her that once the application was lodged her brother "would have to wait a long time but would eventually be granted permanent residence." When Mr Faka'osi asked, as he did on many occasions, what was happening, she told him not to worry, that the solicitor had lodged the form and that they would eventually be told of the outcome.

6. Nothing further happened until the night of 8 October 1988 when Mr Faka'osi attended a Tongan dance at North Curl Curl. After leaving the dance he walked up the street to catch a taxi home. While doing so he witnessed a fight between two people who had been at the function, one of whom threw a rock at the other which hit a taxi. Mr Faka'osi then decided to walk home to Brookvale some 2 kilometres distant. Police in a passing patrol car however stopped him and asked to see his passport. He was arrested, presumably under the provisions of the Migration Act 1958, for no charges were laid, and was taken to the Villawood Detention Centre where he remained in custody until 2 December 1988. Subsequently Mrs Faka'osi was contacted and was told to report regularly to the Department's Chatswood office.

7. On 11 October, a notice issued to each of them, signed on behalf of the Regional Director in New South Wales, asserting that they were prohibited non-citizens under the Migration Act 1958 and liable for deportation. The option of voluntary departure was canvassed and their submissions invited on the question of deportation. On the same day Mr Faka'osi was interviewed by an officer of the Department. In the course of the interview he said that he would be applying for permanent resident status. He pointed out that his father was very old and ill with asthma and that he was the only male in the family who could look after him. Mrs Faka'osi was interviewed on the following day. In the course of that interview, reflected in answers to questions set out on a printed form, she was asked:

"5.8 Have you a Medicare card?

If yes,

(a) have you used the card to make claims;

(b) where is it?"

Her answer to the first question was "yes". No answer was received to sub-question (a) and the answer to sub-question (b) was "at home". The two older children, by then aged 8 and 9, were said to be attending the Brookvale Primary School.

8. On 17 October and with the help of a solicitor, Mr W. Stubbs, Mr Faka'osi completed an application for resident status for himself and his wife. Applications for further temporary entry permits pending determination of the application for resident status were also completed at that time.

9. As his Honour found at first instance, the application was supported by considerable material as to Mr Faka'osi's good character and community activities. There was also a letter confirming that he would be offered fulltime employment by a company carrying on a business at Brookvale if his application were successful. There was a statutory declaration from Mr Dwyer stating that he had seen Mrs Tapaatoutai sign the sponsorship application in January 1985 and recollecting their discussion which was to the effect that her brother could remain in Australia until the application had been finalised. Considerable emphasis was placed, in the materials, on the duties cast upon Mr Fakaosi by Tongan custom to care for his father. There was expert evidence of the role of the son in Tongan custom.

10. On 3 November 1988 Mr Robilliard, an officer of the Department put a submission to its State Director, Mr Tuong Quang Luu, recommending against the grant of resident status. It is not necessary for present purposes to canvass as comprehensively as his Honour did the full range of matters dealt with in Robilliard's submission. But significantly for present purposes it made the following points:

1. That the Faka'osis "were located only after Mr

Faka'osi's apprehension by NSW Police at a hotel

brawl".

2. That the Faka'osis had obtained Medicare benefits.

His Honour held that the references to Mr Faka'osi being "located" conveyed the imputation that he and his wife had changed their addresses without notifying the Department and with intent to avoid the consequences of their decisions to remain illegally in Australia. There was also a clear implication that on 8 October Mr Faka'osi had been arrested after being involved in a hotel fight or brawl. No effort was made to check the relevant facts or seek an explanation of the alleged misconduct. The submission also contained reference to Mrs Faka'osi's Medicare card as a negative factor. To the extent that this reference suggested that she was guilty of some impropriety or misconduct, no such suggestion was put to her in order to allow her an opportunity of giving any available explanation. On 28 November 1988 Mr Luu decided in accordance with Robilliard's recommendation, to refuse the grant of temporary entry permits and permanent resident status, to refuse voluntary departure and to make orders for the deportation of Mr and Mrs Faka'osi.

11. On 1 December 1988 an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 was filed seeking review of some eleven decisions including the refusal of the sponsorship application in 1983 and the failure to consider the appeal to the Immigration Review Panel in December 1984. An order for the release of Mr Faka'osi was made on 2 December and interim orders staying the implementation of the deportation decisions were made on 8 December 1988. On 31 March 1989 an amended application was filed. When the matter came on for hearing before Wilcox J. on 5 April, he held that the application was out of time so far as it sought to review the 1983 and 1984 decisions and declined to allow an extension of time for that purpose. The case therefore focussed upon the decisions by Mr Luu to refuse to the Faka'osis both temporary and permanent entry permits and to order their deportation. A review was also sought of the decision to detain Mr Faka'osi in the Villawood Detention Centre after the signing of the deportation order on 28 November 1988.

12. In the event his Honour held that there had been a breach of natural justice in relation to the innuendo arising from the use of the word "located" in Robilliard's submission, that the Faka'osis had intentionally concealed their whereabouts from the Department. There was a like breach in relation to the allegation that Mr Faka'osi had been involved in a brawl at a hotel on 8 October 1988. The failure to put to Mrs Faka'osi the allegation that she had availed herself of Medicare benefits to which she knew she was not entitled also amounted to procedural unfairness. His Honour concluded that the decisions made by Mr Luu were invalid for failure to comply with the requirements of natural justice in these respects.

13. To the extent that there was no material put before the decision-maker to indicate that the original sponsorship application had been reassessed in favour of Mr Faka'osi in late 1984, there was a failure to draw attention to a matter which was relevant to the question whether strong compassionate or humanitarian grounds for the grant of resident status had been made out. On this basis his Honour held that the case under s.5(2)(b) of the Administrative Decisions (Judicial Review) Act 1977 was established.

14. From the time that the deportation order was signed on 28 November 1988 and Mr Faka'osi informed of that decision, his continuing detention originally effected under s.38 of the Migration Act could only be justified, in his Honour's view, by s.39. In his Honour's opinion the opening words of s.39 conditioned the power to arrest and the power to detain in custody upon the existence "in force" of a deportation order. There must have been in other words, a valid and current deportation order applicable to the person detained. Given that the deportation order was affected by non-observance of the requirements of natural justice and failure to take into account relevant matters, his Honour held it was invalid and should be set aside, that the detention pursuant to that order was unauthorised. In the event he made declarations that the refusal of temporary and permanent entry permits and the decision to deport the Faka'osis were each invalid and that Mr Faka'osi's detention in custody was unlawful from the time on 28 November 1988 when he was informed of the making of that order to his release pursuant to the order of the Court on 2 December 1988.

15. In the course of the hearing before his Honour, counsel for the Minister sought to tender a statement of reasons dated 30 December 1988, prepared by Mr Luu, under the provisions of s.13 of the Administrative Decisions (Judicial Review) Act 1977, relating to his decisions to refuse the grant of resident status and the concession of a supervised voluntary departure and to order the deportation of Mr and Mrs Faka'osi. It had been prepared and served pursuant to directions given on 8 December. The tender being objected to by counsel for the Faka'osis, his Honour held that the statement was not admissible saying as he did:

"I think, in terms of principle, a self serving

statement made not on oath outside Court is not

normally regarded as admissible at the hands of

the person who makes the statement. It comes into

its own category in the absence of some statutory

provision so I think I have to reject the tender."

An application by counsel for the Minister for an adjournment to enable an affidavit by Mr Luu to be filed and read was refused.

16. The Minister appeals from his Honour's decision on the ground that he erred in law in rejecting the s.13 statement. Contingent upon the success of that ground, he relies upon the statement, which was tendered for this purpose in the appeal, to show that the "located" innuendo and the "hotel brawl" allegation were not taken into account by the delegate. The reasons would also demonstrate, it was contended, that the Medicare allegations played such a small part in the overall consideration by the delegate as not to give rise to any denial of natural justice.

17. The second substantive ground of appeal is that his Honour failed to exercise his discretion under sub-s.16(1) of the Administrative Decisions (Judicial Review) Act 1977 in holding that the effect of the invalidity of the deportation order was necessarily to make Mr Faka'osi's detention unlawful. Orders are sought that the application be remitted for reconsideration by Wilcox J. and that his declaration relating to Mr Faka'osi's detention between 28 November 1988 and 2 December 1988 be set aside.

18. It was argued by counsel for the Minister that reasons for decision prepared pursuant to s.13 of the ADJR Act do not fall into the same general class as out of court statements by parties. They are, he submitted, in a special category forming part of the record, analogous in their statutory context, to the reasons for judgment of a trial judge which form part of the record on an appeal. They may always be tendered by the decision-maker as evidence of his state of mind, that is as to what he did and did not take into account. It would be inimical to the policy of the Act that a decision-maker should find it necessary to give evidence of the matters taken into account whenever there is a challenge on the ground that irrelevant considerations have been taken into account or relevant factors overlooked. The analogy was drawn with the role of particulars at common law. And if the statement of reasons had been received in evidence it would have demonstrated, so it was said, that neither the "location" innuendo nor the hotel brawl allegation were given any weight. It would also disclose that the allegation that Mrs Faka'osi had received Medicare benefits was given "virtually no adverse significance".

19. The declaration that Mr Faka'osi's detention was unlawful from 28 November to 2 December, was said to have been made under s.16(1)(a) of the ADJR Act. That section confers a discretion on the Court to backdate its orders. His Honour, it was submitted, proceeded erroneously on the basis that he had no discretion. The setting aside of an administrative decision involving imprisonment is analogous to the quashing of a conviction. Imprisonment undergone in the latter case has never been regarded as wrongful or compensible and there was less reason for compensating for erroneous non-penal detention than for compensating for penal imprisonment. The Court's discretion should not be exercised so as to impose upon the Commonwealth or its delegate liability for wrongful imprisonment in such circumstances.

20. The entitlement to a statement of reasons for an administrative decision under Commonwealth law arises under s.13 of the ADJR Act, subject to exceptions in the Second Schedule which are not material for present purposes. Apart from provisions relating to refusal to prepare a statement and for court orders declaring the entitlement, the core provisions are:

"13.(1) Where a person makes a decision to which

this section applies, any person who is entitled to

make an application to the Court under section 5

in relation to the decision may, by notice in

writing given to the person who made the decision,

request him to furnish a statement in writing

setting out the findings on material questions of

fact, referring to the evidence or other material

on which those findings were based and giving the

reasons for the decision.

(2) Where such a request is made, the person

who made the decision shall, subject to this

section, as soon as practicable, and in any event

within 28 days, after receiving the request,

prepare the statement and furnish it to the person

who made the request.

.

.

.

(7) (Power in Court to order additional

statement)

.

.

.

(11) In this section, "decision to which this

section applies" means a decision that is a

decision to which this Act applies, but does not

include -

(a) a decision in relation to which section 28 of

the Administrative Appeals Tribunal Act 1975

applies;

(b) a decision that includes, or is accompanied by

a statement setting out, findings of facts, a

reference to the evidence or other material on

which those findings were based and the

reasons for the decision; or

(c) a decision included in any of the classes of

decision set out in Schedule 2."

Section 16 which sets out the powers of the Court upon application for orders for review provides in the relevant parts:

"16.(1) On an application for an order of review in

respect of a decision, the Court may, in its

discretion, make all or any of the following

orders:-

(a) an order quashing or setting aside the

decision, or a part of the decision, with

effect from the date of the order or from such

earlier or later date as the Court specifies;

(b) an order referring the matter to which the

decision relates to the person who made the

decision for further consideration, subject to

such directions as the Court thinks fit;

(c) an order declaring the rights of the parties

in respect of any matter to which the decision

relates;

(d) an order directing any of the parties to do,

or to refrain from doing, any act or thing the

doing, or the refraining from the doing, of

which the Court considers necessary to do

justice between the parties."

Sub-sections (2) and (3) are not material for present purposes.

21. It is necessary also to have regard to the provisions of the Migration Act 1958 relating to the detention of persons as they stood in November and December 1988. Section 38 of the Migration Act authorised "an officer", which term includes a member of a State Police Force (see s.5) without warrant to arrest a person whom he or she reasonably supposes to be a prohibited non-citizen. Such a person would be kept in custody subject to the obligation of the custodian to take that person before "a prescribed authority" usually a magistrate.

22. Sub-section 38(6) dealt with a case in which a deportation order is made while such a person is in custody:

"38(6) While a person is in custody under this

section, an officer informs that person...that a

deportation order is in force in relation to him,

the preceding provisions of this section cease to

apply in relation to that person and he shall be

deemed to have been thereupon arrested under

section 39 by the officer having his custody or, if

he is not in the custody of an officer, by the

officer who so informs him."

Section 39 then provided:

"39(1) Where an order for the deportation of a

person is in force, an officer may, without

warrant, arrest a person whom he reasonably

supposes to be that person and a person so arrested

may, subject to this section, be kept in custody as

a deportee in accordance with sub-section (6).

(2) Where an officer arrests a person in

accordance with this section, the officer shall

forthwith inform the person arrested of the reason

for the arrest and shall, if that person so

requests, furnish to him, as soon as practicable,

particulars of the deportation order.

.

.

.

(3) A deportee may be kept in such custody as the

minister or an officer directs -

(a) pending deportation, until he is placed on

board a vessel for deportation;

(b) at any port or place in Australia at which th e

vessel calls after he has been placed on

board; or

(c) on board the vessel until her departure from

her last port or place of call in Australia.

.

.

.

(8) Nothing contained in, or done under, this

section prevents the Supreme Court of a State or

Territory or the High Court from ordering the

release from custody of a person held in custody

under this section where the Court finds that there

is no valid deportation order in force in relation

to that person."

23. Indirectly relevant for present purposes are the provisions of Pt.IIIA of the Evidence Act 1905 relating to admissibility of business records. Under s.7A "business" includes:

"(b) The administration of the government of the

Commonwealth, of a State, of a Territory or of

another country, whether carried on in Australia or

elsewhere:"

"'qualified person', in relation to a statement made

in the course of, or for the purposes of, a

business, means a person who -

(a) at the time when the statement was made, was-

.

.

.

(ii) a servant or agent employed or engaged in

the business;"

The principal substantive provisions are found in s.7B which includes in the relevant parts:

"7B(1) Subject to this Part, where, in any

proceeding, evidence of a fact is admissible, a

statement of the fact in a document is admissible

as evidence of the fact if -

(a) the document containing the statement forms

part of a record of a business, whether or not

the business is in existence at the time when

the question of admissibility arises;

(b) the statement was made in the course of, or

for the purposes of, the business; and

(c) the statement was made by a qualified person

....

.

.

.

(2) This section makes a statement admissible

notwithstanding -

(a) the rules against hearsay;

(b) the rules against secondary evidence of the

contents of a document;

(c) that any person concerned in the making of the

statement is a witness in the proceeding,

whether or not he gives testimony consistent

or inconsistent with the statement; or

(d) that the statement is in such a form that it

would not be admissible if given as oral

testimony,

but does not make admissible a statement that is

otherwise inadmissible.

(3) In this section, "fact" includes opinion."

Section 7C(1) imposes a limitation on the operation of s.7B:

"7C(1) A statement is not admissible under section

7B in a proceeding if it was made or obtained for

the purpose of, or in contemplation of, any

judicial or administrative proceeding."

24. The decision-maker's s.13 statement was objected to on the basis that it was self-serving, and therefore admissible only in the hands of the applicants. Its authenticity was not challenged. The question on this appeal is whether, assuming authenticity, it was admissible and if so, for what purposes. That must be considered in the light of the statutory policy which it serves and the purpose for which it was tendered. It is convenient first to consider the statutory policy disclosed by s.13.

25. There is no general rule of common law or principle of natural justice that requires reasons to be given for administrative decisions, even when made in the exercise of a statutory discretion and which may adversely affect the interests, or defeat the legitimate or reasonable expectations of other persons - Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 660 (Gibbs C.J., Wilson, Brennan, Deane and Dawson JJ. agreeing). There is nevertheless a longstanding predisposition among law reformers and legislators in the common law world in favour of their provision. The purposes served by giving reasons cannot readily be confined to particular classes of adjudication. As Professor Wade said in a statement adopted by Gibbs C.J. in Osmond (supra):

"The giving of reasons is required by the ordinary

man's sense of justice and is also a healthy

discipline for all who exercise power over others."

26. Within its area of application, s.13 of the ADJR Act serves the same broad purposes. As expressed by the Administrative Review Council in its publication - Statement of Reasons: An Explanatory Memorandum, adopted by Ellicott J. in Burns v Australian National University [1982] FCA 59; (1982) 40 ALR 707 at p 715 they include:

1. Overcoming the real grievance persons

experience when they are not told why

something affecting them has been done.

- Re Poyser and Mills' Arbitration (1964) 2 QB

467 at 467-70; Re Palmer and Minister for the

Capital Territory (1978) 23 ALR 196.

2. To enable persons affected by a decision to

see what was taken into account and whether an

error has been made so that they may determine

whether to challenge the decision and what

means to adopt for doing so. - Iveagh v

Minister of Housing and Local Government

(1964) 1 QB 395 at 405 and 410.

The section has been described as crucial and designed to ensure that the basis upon which a decision is made is able to be seen so that its legality can be tested. The obligation it imposes "demands the furnishing of reasons which make intelligible the true basis of the decision" - ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1986) 65 ALR 343 at p 349 (Burchett J.). It is remedial, supplying the deficiency of the common law - Re Australian Institute of Marine and Power Engineers [1986] FCA 443; (1986) 71 ALR 73 at p 79 (Gummow J.). The section balances requirements that those persons affected by administrative decisions should know why they are made on the one hand and that the administration of the country be carried on effectively without undue intervention by the Courts on the other. It is designed to provide persons affected by a decision with sufficient information to decide whether to accept it or pursue the matter further with the administrative process or through the court - Ansett Transport Industries (Operations) Ltd v Secretary Department of Aviation (1987) 73 ALR 193 at 197 (Lockhart J.); Re Australian Institute of Marine and Power Engineers (supra) at 79 (Gummow J.); Dalton v Deputy Commissioner of Taxation (NSW) [1985] FCA 298; (1985) 7 FCR 382 at 391-2 (Lockhart J.).

27. It is too narrow a view of the policy of the section however to suggest, as did counsel for the respondent, that it was enacted only for the benefit of those who are affected by decisions and who may wish to challenge them. As Professor Pearce has observed, it was implicit in the recommendations of the Commonwealth Administrative Review Committee for the enactment of such a provision, that the giving of reasons will not only reveal defects in the decision but will also lead to better decision making by requiring administrators to identify for themselves the reasons for their decisions - Pearce - Commonwealth Administrative Law (1986) - para.357. This is consistent with the evident policy of the legislative scheme for review of administrative decisions reflected in the Administrative Appeals Tribunal Act 1975, The Ombudsman Act 1976, Administrative Decisions (Judicial Review) Act 1977 and the Freedom of Information Act 1982. They provided significantly new opportunities for access to the processes and materials underlying official decision making and substantially widened the bases and mechanisms for review. And although the facilities provided for redress against unlawful or unfair or erroneous decision-making are important elements of these statutes, their overarching objective must be to improve and maintain standards of official fairness, rationality and compliance with the law. It is against that broad policy background that s.13 is to be considered.

28. Importantly, the obligation imposed by the section is not satisfied by the provision of an ex post facto justification for the decision under challenge. It is not enough that an administrator confronted with a request for reasons should draft a set of reasons and findings which he or she think will stand up in court. The duty under s.13 is clear. It is to set out "the findings on material questions of fact" and "the reasons for the decision". That does not require the degree of precision or detail which may be appropriate to a judicial decision. But it demands a statement of the real findings and the real reasons. It is an incident of the obligation that the statement should not omit findings or reasons for the decision which may, in the light of a pending review application, appear to be irrelevant or reflective of some false assumption or pre-judgment. If an official or his or her advisors discover error when asked to provide a s.13 statement, the appropriate course may be to concede that the decision requires reconsideration. It is not appropriate to draft a statement from which the error is censored. The Court is sufficiently aware of the pressures associated with administrative responsibilities for high volume and urgent decision-making to accept that mistakes will occur which can and should be redressed without any personal reflection upon the competence or integrity of the officials whose decisions are under challenge. But the statute requires that a statement provided under s.13 will reflect the true reasons for the decision in question. Anything less would approach, if not amount to, a fraud upon the public and the Court.

29. And it is that statutory context that lays a foundation for the acceptance of a properly authenticated statement of reasons under s.13 as evidence of the truth of what it says, namely, that the findings made, the evidence referred to and the reasons set out were those actually made, referred to and relied upon in coming to the decision in question and that no finding, evidence or reason which was of any significance to the decision has been omitted. That the statement may be used in evidence to support such an inference does not exclude the possibility that a contrary inference may be drawn from its form and contents considered alone or against other evidence in the case. Absent any such contra-indication, the inference that it is an accurate account of the findings and reasons actually relied upon is no more than a piece of circumstantial reasoning not dissimilar in character from that which underlies the so called presumption of regularity or presumption against fraud - Gillies - Law of Evidence in Australia (1987) pp 85-88. To the extent that evidentiary effect is given to the s.13 statement by a process of inferential reasoning, the term "presumption" may mislead. The inferences which may be drawn about its accuracy as a true account of findings and reasons are derived from the facts implicit in its authentication and that it was prepared by the decision-maker in the exercise of a statutory duty to give such an account of his decision.

30. The issue has been discussed in two cases in this Court. In Sezdirmezoglu v Minister for Immigration and Ethnic Affairs [1983] FCA 267; (1983) 51 ALR 561, the Minister's statement, unsupported by any affidavit, was tendered at the commencement of the hearing. Smithers J. at p 570 took the view that unless effectively challenged it was "evidence of the reasons for his decision". He relied upon the judgment of Megaw J. in Givaudan and Co. Ltd v Minister of Housing and Local Government (1967) 1 WLR 400. The respondent Minister was required by the Town and Country Planning Appeals (Inquiries Procedures) Rules 1962, when deciding a planning appeal from a local authority, to "notify his decisions and his reasons therefor in writing to the appellant...". A landowner sought an order quashing the Minister's decision rejecting his appeal on the ground, inter alia, that the reasons given did not comply with the standard required by the rules. Megaw J. acceded to the application on this ground and in so doing said at p 409:

"The document containing the Minister's reasons is,

as I sought to make clear in my judgment already

referred to, an important document, required by

statute to be prepared for a particular and

important purpose, and it must be, and no doubt is,

regarded by the Minister as such. The whole of its

contents must be assumed, prima facie at least, to

have been inserted for a relevant purpose: namely,

the setting forth with reasonable precision and

clarity of matters which are relevant as indicating

and explaining positively or negatively, the

reasons for the Minister's decision."

These observations did not expressly lay a foundation for the admission of the Minister's letter. It was its adequacy as a statement which was at the centre of the proceedings and its admissibility was not in issue. The extent to which it provides support for the dictum in Sezdirmezoglu may therefore be doubtful. The Full Court in Minister for Immigration and Ethnic Affairs v Arslan [1984] FCA 231; (1984) 55 ALR 361 at p 363 said that "...the applicant for review of a decision may extract from it, and use, such statements as are admissions in his favour but the officer, or Minister, whose decision is being reviewed, cannot use the statement as evidence of the facts contained therein in a self serving way". At first glance this might seem to exclude the use of the s.13 statement by the decision-maker for any purpose at all. It was clear however from their Honours' judgment that they were neither overruling Sezdirmezoglu nor saying that a s.13 statement could not be relied upon by its maker as evidence of his state of mind at the relevant time, that is to say as evidence of the reasons for which the decision was made and the findings upon which the reasons were based. This became clear at p 364 when, after holding that Givaudan (supra) was not authority for the proposition that the statement is prima facie evidence of the facts stated therein, their Honours went on:

"In any event we do not think that what was said by

Smithers J. is inconsistent with the view that we

have already expressed that the making of a

decision is not evidence of the facts that may

underlie the decision itself. Thus a statement

in a s.13 statement that the Minister's decision

was based upon his opinion that a person was of bad

character would be evidence only of the fact that

the Minister held that opinion. It would not be

evidence that the person was, in fact, a person of

bad character."

Both judgments ultimately support the proposition that the statement of reasons can be treated as evidence of the fact that the reasons for decision and the findings on which they were based were as set out in the statement. That is not to say that the use of the term "prima facie evidence" to describe its effect is particularly helpful. It is a piece of evidence to be weighed and assessed like any other.

31. His Honour's rejection of the s.13 statement in this case as self serving reflected the exclusionary approach taken by courts since the end of the eighteenth century to the out of court statements of a witness tendered by the party calling him. It is necessary however to recognise the context in which that approach developed. It was in substance a rule against the use of out of court statements to corroborate a witness' testimony. In the eighteenth century and prior to its development there was, as Wigmore points out, a prevailing notion "...that a witness could always be corroborated, without any limitation by the circumstance of having made at other times statements consistent with the testimony delivered by him in court" - Wigmore on Evidence para.1123 and for examples see Gilbert's Evidence (1726) p 150; Buller's Trials at Nisi Prius (1767) p 94; Lutterell v Reynell (1671) 1 Mod 282; 2 Hawk PC 431. Objections to the admission of such materials however became increasingly successful, a notable turning point being the ruling of Eyre L.C.J. in the trial of Thomas Hardy, a shoemaker, for high treason in 1794 where he said, in an exchange with Hardy's counsel, Erskine:

"Nothing is so clear as that all declarations which

apply to facts, and even apply to the particular

case that is charged, although the intent should

make a part of that charge, are evidence against a

prisoner and are not evidence for him, because the

presumption upon which declarations are evidence

is, that no man would declare any thing against

himself, unless it were true; and that every man,

if he was in a difficulty, or in the view to any

difficulty, would make declarations for himself.

Those declarations, if offered as evidence would be

offered therefore, upon no ground which entitled

them to credit. That is the general rule."

The objection as appears from this passage developed not from considerations of logical relevance but reflected a blanket approach to the weight to be given to such evidence. This is exemplified by the observation of Hodson L.J. in Corke v Corke and Cook (1958) p 93 at 101:

"...it seems the fundamental basis of the rule is

that such evidence has no probative value."

"Whether this rule is strictly logical or not, it is

one which keeps the evidence to the main issues in

dispute and tends to avoid deception of the court

by a resourceful witness. Evidence is not a matter

of mere logic."

This rationale, the sweeping nature of the rule and the limited range of exceptions to it have attracted criticism. Professor Gooderson in Previous Consistent Statements (1968) CLJ 64 saw it as a failing of the modern common law which showed "insufficient vitality" to return to the position where prior consistent statements were admissible "even where justice requires it". MacCrimmon in Consistent Statements of a Witness (1979) 17 Osgoode Hall L.J. 285 at 288 suggested that the rule may rest in part upon the now discredited assumption that parties are liable to be motivated by their own interests to such an extent that they will present false evidence. The 3rd Australian Edition of Cross on Evidence at para.9.47 accepts that the rule serves a useful purpose in keeping witnesses to the point and excluding evidence of little if any probative value but says that it has tended to become a "confusing fetish". In Ligertwood - Australian Evidence (1988) at p 304 it is suggested that:

"...with the probative weight of a previous

consistent statement towards establishing oral

credibility being a question of fact it might be

arguable that in very strong circumstances the rule

should not apply. In fact there are a number of

exceptions to the general rule, most of which may

be explained as illustrating such strong

circumstances. And, where strong circumstances

exist for supporting credibility by reference to a

previous consistent statement because that

statement is likely to be reliable, it is arguable

that the previous statement should be used not only

to support the witness's oral testimony but also

(in exception to the hearsay rule) as direct

evidence of the material facts in issue."

See also - Australian Law Reform Commission (1985) Report No. 26 Evidence Vol. 1 para.334 and the comment entitled Prior Consistent Statements and the Doctrine of Recent Invention in (1989) 63 ALJ 552.

32. Since 1968 the rule has been substantially attenuated for civil proceedings in England by the Civil Evidence Act 1968 which provides for the admissibility in civil proceedings of any "statement made whether orally or in a document or otherwise by any person; whether called as a witness in those proceedings or not...as evidence of any facts stated therein of which direct oral evidence by him would be admissible". In relation to "business" records it has been displaced in Federal Courts in Australia by s.7B of the Commonwealth Evidence Act 1905. That section applies to statements made in the course of or for the purposes of the administration of the government of the Commonwealth. On the face of it there is no reason to suppose that, were it necessary to their admissibility, sub-s.7B(1) would not apply to statements provided under s.13 of the ADJR Act. That is not to say that such statements are admissible by virtue of the statute for purposes other than those contemplated in Sezdirmezoglu and Arslan (supra). For when produced according to the section, they will purport to do no more than set out the decision-maker's reasons for decision, the findings of fact on which they were based and the evidence relied upon. They will not purport to assert the facts found as such. Such statements may be evidence therefore of the material put before the decision-maker and the way in which it was dealt with. Counsel for the Minister in this case said that these provisions were not addressed at trial. This appears to have been because there was no objection to the authenticity of the statement. But the provisions of s.7B are not limited to establishing the authenticity of statements admissible thereunder. They extend to allow any use of such statements for the purposes of proving the truth of their contents notwithstanding the hearsay rule and notwithstanding that the person who made the statement may give evidence consistent with it (S.7B(2)(c) and (d)).

33. Independently of the operation of s.7B of the Evidence Act however there is no warrant for extending to the present case, involving a statutory statement prepared by a public official, an exclusionary rule designed to prevent the use of out of court statements by witnesses to reinforce the credibility of their testimony in Court.

34. Counsel for the Minister suggested that reasons for decision under s.13 are analogous to the reasons of a trial judge in an appeal or the record of a tribunal called up in proceedings for certiorari for error of law on its face. While a judgment as a public transaction of a solemn nature is presumed to be faithfully recorded - Phipson on Evidence 13th Edition para.28-02 - it is debatable whether, strictly speaking, reasons for judgment form part of the formal record for the purposes of the prerogative writs - R v District Court of Queensland; Ex parte Thompson [1968] HCA 48; (1968) 118 CLR 488 at p 496 (McTiernan J.) and p 501 (Menzies J.). The question of their admissibility on an appeal as evidence of the reasons for the judgment does not in the ordinary course arise. Nor does the question of the admissibility of the reasons for decision of the Administrative Appeals Tribunanl on an appeal to this Court under s.44 of the Administrative Appeals Tribunal Act. The analogy of the record does not assist greatly in this case. It was originally narrowly defined as limited to the formal parchment records of acts and judicial proceedings - Blackstone Commentaries Vol. 3 p 24. An expansion of the concept to cover the orders of Tribunals and their reasons when incorporated in such orders was accepted in the Court of Appeal in R v Northumberland Compensation Appeals Tribunal, Ex parte Shaw [1951] EWCA Civ 1; (1952) 1 KB 338, but treated with reserve by the House of Lords in Baldwin and Francis Ltd v Patents Appeal Tribunal (1959) AC 663 at p 686-687 (Lord Tucker) - see generally De Smith - Judicial Review of Administrative Action (5th Ed.) pp 400-408; Gilbert - Problems of Subordinate Administrative and Judicial Tribunals Which Do Not Record Reasons for Decision 9 Univ of Qld LJ 39 at pp 42-51; Abel - Materials Proper for Consideration on Certiorari to Tribunals (1963) 15 Univ of Toronto LJ at pp 110-122; Fitzgerald and Elliott - Certiorari - Errors of Law on the Face of the Record (1964) Melb U Law Rev 564 at p 566 et ff; Akehurst - Statements of Reasons for Judicial and Administrative Decisions (1970) 33 MLR 154. In England, the Tribunals and Enquiries Act 1958 requires the provision of reasons for a wide range of decisions made by statutory tribunals and ministers and deems that such reasons are to form part of the record (s.12(3)). A similar section is found in the Administrative Law Act 1978 (Vic). There is no such provision in the Administrative Decisions (Judicial Review) Act 1977. Order 54 r.3 of the Federal Court Rules requires that on the filing of an application for an order of review or as soon afterwards as practicable, the applicant shall file copies of such of the following documents as are in his possession:

(a) A statement of the terms of the decision the

subject of the application; and

(b) A statement with respect to that decision

furnished to the applicant pursuant to s.13 of

the Administrative Decisions (Judicial Review)

Act 1977 or s.28 of the Administrative Appeals

Tribunal Act 1975, or any other statement

furnished by or on behalf of the person who

made the decision purporting to set out

findings of facts or a reference to the

evidence or other material on which those

findings were based or the reasons for making

the decision.

Although that rule could not of itself have the effect of making the reasons part of the record, it is consistent with the proposition that, properly authenticated, they can be treated as evidence of the reasons for which the decision was made. And in a proper case, where the issue of their construction, correctness or completeness is properly raised on good grounds, the Court may, in my opinion, permit cross-examination of the decision-maker. The fact that the reasons are not exhibited to an affidavit because authorship is not in issue or is otherwise proved, cannot bar the use of that facility for testing the evidence where natural justice so requires.

35. Absent any objection to the authenticity of the statement in this case, it should not have been rejected, as it was, upon the basis that it was self serving and not verified by affidavit. Authenticity was not in issue and there is nothing to suggest that it was being tendered for the purpose of proving the correctness of the decision-maker's findings of fact. The question that follows is whether its acceptance could have affected the outcome of the proceedings.

Whether Rejection of the Statement Affected the Result of the Proceedings

36. Counsel endeavoured to demonstrate by reference to the statement that the matters raised under the natural justice head; the location innuendo, the hotel brawl and the Medicare benefits allegations, had played no significant part in the decision that was made. The question whether a decision is avoided for breach of natural justice when it is established that compliance with fair procedure would not have affected the outcome is attended with some controversy. In the fifth edition of De Smith's Judicial Review of Administrative Action (1980) it was suggested that the law is still uncertain. When the prima facie breach is serious and the impact of the decision upon the individual grave, the preferable approach propounded was that:

"The fundamental principle at stake is that public

confidence in the fairness of adjudication or

hearing procedures may be undermined if decisions

are allowed to stand despite the absence of what a

reasonable observer might regard as an adequate

hearing."

This was contrasted with the approach that injustice lies only in holding an individual bound by a decision whose substantive reliability is cast in doubt by the existence of procedural irregularities. The matter was addressed by some but not all of the judges in Kioa v West [1985] HCA 81; (1985) 159 CLR 550. It is important to note the fact disclosed in the judgment of Gibbs C.J. at p 568-569 that the statement of reasons in that case made no reference to the serious allegation against the appellant that he had had "active involvement with other persons who are seeking to circumvent Australia's immigration laws". Nor was there any evidence before the Court that the delegate had considered matters other than those mentioned in his reasons. Despite that fact the majority allowed the appeal, set aside the deportation order in question and remitted the matter for reconsideration by the Minister. Wilson J. arrived at that result with some reluctance believing that it was at most a very slender technical victory to the appellants. It was, he said, difficult to see how even an emphatic reversal of the imputation complained of could affect the result. His Honour went on at p 603:

"However, having decided that decisions under

S.18 must be attended with procedural fairness, it

would frustrate the purpose of the AD(JR) Act if a

breach of the rules of natural justice were to be

condoned, in the exercise of the discretionary

powers of disposition conferred by s.16, merely

because the breach was not shown to have affected

the decision. The contrary has not been contended,

the case having been argued on the basis that if

the rules of natural justice apply and are shown to

have been breached then the decision must be set

aside. "

Brennan J. at 628 accepted that persons whose interests are likely to be affected by administrative decisions do not have to be given an opportunity to comment on every adverse piece of information irrespective of its credibility, relevance or significance. The process is not to be clogged by inquiries into allegations to which the decision-maker would not give credence, which are not relevant to his decision or are of little significance to the decision which is to be made. However his Honour said at p 629:

"Nevertheless in the ordinary case where no problem

of confidentiality arises an opportunity should be

given to deal with adverse information that is

credible, relevant and significant to the decision

to be made. It is not sufficient for the

repository of the power to endeavour to shut

information of that kind out of his mind and to

reach a decision without reference to it.

Information of that kind creates a real risk of

prejudice, albeit subconscious, and it is unfair to

deny a person whose interests are likely to be

affected by the decision an opportunity to deal

with the information. He will be neither consoled

nor assured to be told that the prejudicial

information was left out of account."

37. Whether the Court has a discretion to refuse relief in a case where natural justice has not been observed and the non-observance has no demonstrable effect on the actual outcome, may turn in part upon the vexed question whether the decision in such circumstances is void or voidable. In this case there can be no doubt however that from the view point of a decision-maker exercising the discretion to deport under the Migration Act the allegations in issue against the Faka'osis were significant, credible and relevant. Although Mr Luu expressly disclaimed reliance upon the location innuendo and the hotel brawl allegation, the disclaimer could not, in the circumstances of the case, have repaired the failure to comply with the requirements of natural justice which his Honour found to have occurred. In any event, as appears from para.43 of the reasons, he considered as a factor against the grant of resident status the fact that the Faka'osis "...had obtained Medicare benefits...", a matter of which there was no evidence and on which the appellants had no opportunity to comment. The receipt of the statement in the proceedings before the learned trial judge could not reasonably therefore have affected their result.

38. The respondents succeeded before his Honour not only on the basis that there had been a breach of natural justice but also on the basis, which is not challenged, that there had been a failure to take into account a relevant factor. That was the fact that Mrs Tapaatoutai's sponsorship application had been reassessed in November-December 1984 at 61 points, sufficient to qualify Mr Faka'osi for sponsorship under Departmental guidelines. The connection between that reassessment and the withdrawal of Mrs Tapaatoutai's application for review by the Immigration Review Panel was not adverted to. The Minister not having challenged his Honour's judgment in this respect he could not expect to set it aside in its entirety. There was nevertheless an independent attack upon the declaration that Mr Faka'osi's detention in custody between 28 November and 2 December 1988 was unlawful. The core submission was that his Honour had "backdated the order" on the erroneous assumption that having found the deportation decision to be invalid he had no alternative.

39. It is true that his Honour's order setting aside the decisions under review was expressed to be "as from the date of those decisions". And it is clear from the language of para.16(1)(a) that such an order may be expressed to take effect "from the date of the order or from such earlier or later date as the Court specifies". In terms however it was not the temporal operation of this order that was attacked, but the declaration that the detention between the specified dates was unlawful. Yet the setting aside of the deportation order removed the legal foundation for the detention. If the deportation decision were of no effect during the period in which the Faka'osis were in custody, a refusal by the learned trial judge to make a declaration that the custody was unlawful would not make it lawful. And the propriety of such declaratory relief is authoritatively supported by the decision of the High Court in Park Oh Ho v Minister for Immigration and Ethnic Affairs [1989] HCA 54; (1989) 64 ALJR 34. Their Honours identified the purpose of para.16(1)(c) and (d) in conferring power to grant declaratory and injunctive orders as allowing flexibility in the framing of orders so that issues properly raised in the review proceedings could be disposed of in a way which would achieve what is necessary to do justice between the parties and avoid unnecessary relitigation of issues. A declaration as to the lawfulness of a period of forced detention based solely on a void decision was a "matter to which the decision relates" within para.16(1)(c). The lawfulness of the deportee's custody having been contested in that case the court held:

"The effect of declaratory relief will be to resolve

finally as between the appellants and the Minister,

the question whether the appellants detention in

custody during the relevant period was unlawful.

It will not conclude as against the Minister the

question of the Minister's responsibility for that

unlawful detention."

This leaves open the question whether the invalidity of a decision reached in breach of the rules of natural justice vitiates consequential decisions and processes. But the declaration was attacked in this case as a miscarriage of discretion, not as a misstatement of the legal position. No question of a discretion to backdate the declaration arises. As an exercise of discretion to grant or withhold the relief, the decision was plainly not in error. For these reasons the appeal should be dismissed.

I have had the opportunity to read the reasons for judgment prepared by both Davies and French JJ. The facts are fully set out in the judgment of French J. and need not be repeated. With respect I agree, for the reasons given by French J., that whether or not in the present case the statement by the Minister given under s.13 of the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act") was admissible in evidence on a tender by counsel for the Minister, the acceptance into evidence of that statement would make no difference to the outcome of the present appeal.

2. With respect I also agree with his Honour's conclusion that the learned trial judge's order that the decisions under review be set aside as from the date of those decisions was plainly not in error.

3. Strictly therefore it is unnecessary to consider for the purposes of the present appeal whether the statement under s.13 of the Act should have been accepted into evidence on a tender of it by the Minister. However, as this matter was fully debated before us and as it has been dealt with by both Davies and French JJ. I propose to deal shortly with the question.

4. The statutory background to s.13 of the ADJR Act has been fully dealt with in both of the judgments of Davies and French JJ. and need not be canvassed at length. Absent such a provision there is no obligation upon a decision-maker at common law to give reasons for an administrative decision: Public Service Board of NSW v. Osmond (1986) 159 CLR 656 at 660. Without reasons which make intelligible the true basis of the decision (cf ARM Constructions Pty Ltd v. Deputy Commissioner of Taxation (1986) 65 ALR 343 at 349 (Burchett J.)) a person affected by an administrative decision will not know the matters that the decision-maker has taken into account and often will not be able to determine whether an error has been made in the decision making process. By requiring a decision-maker to set out his findings on material questions of fact by reference to the evidence or other material on which those findings were based and by requiring the decision-maker to give reasons for the decision, s.13 of the ADJR Act enables the person affected by the decision to understand the basis upon which the decision was made and by exposing the process of reasoning permits that person or his advisers to assess whether the decision should be accepted or challenged: Burns v. Australian National University [1982] FCA 59; (1982) 40 ALR 707 at 719.

5. However as Davies J. points out, the statement under s.13 does not itself form part of the decision-making process. The statement need not be supplied by the decision-maker unless it is requested by a notice in writing within the times stipulated by s.13(5), which, in the case of a decision the terms of which were not recorded in writing and set out in a document furnished to the person affected by the decision, must be made within a reasonable time after the decision was made. Were the statement of reasons under s.13 part of the decision-making process itself those reasons would then be admissible as part of the res gestae. Where however the reasons may be prepared some considerable time after the decision-making process itself was complete it can hardly be said to be part of the res gestae and for that reason admissible.

6. The mere fact that the statement is required by statute does not in my view provide a reason for the adoption of a different view. In particular the obligation to furnish a statement does not, in my view, render admissible that which was otherwise inadmissible. The case of Givaudan and Co Ltd v. Minister of Housing and Local Government (1967) 1 WLR 400 is not authority to the contrary. The statutory requirement there under consideration was a requirement that the reasons in writing be notified with the decision. In any event, as the Full Court of this Court pointed out in Minister for Immigration and Ethnic Affairs v. Arslan [1984] FCA 231; (1984) 55 ALR 361 at 364 the reasons of the decision-maker were treated as an admission against the Minister and not evidence, prima facie or otherwise, of the facts stated in the letter of reasons.

7. While o.54 r.3 of the Rules of this Court provides for the filing of a s.13 statement by an applicant for review, I agree, with respect, with Davies J. that that rule is not a rule directed to the admissibility of evidence. As his Honour points out, the proper and orderly conduct of the case at a pre-trial stage may be greatly assisted by recourse to the s.13 statement. Indeed, the rules make clear that except where the contrary is provided, the rules of evidence will apply to proceedings in the court. Such dispensation as the rules provide is generally quite narrow: cf o.33 r.2 and 3.

8. As a matter of ordinary principle a statement made after the event will not generally be received as evidence in favour of the person making the statement: Adelaide Chemical and Fertilizer Co Ltd v. Carlyle [1940] HCA 44; (1940) 64 CLR 514, 530-533; Williams v. Lloyd [1934] HCA 1; (1933-4) 50 CLR 341 at 371. Such evidence is not only self-serving but is a narrative of a past event and purports to be the equivalent of or a substitute for direct testimony of the event it narrates. The exception to this rule that the state of a man's mind may be proved by evidence of the words and acts which identify that state of mind even when not contemporaneous with the time when the state of mind is to be considered, discussed in detail in Allied Pastoral Holdings Pty Ltd v. Federal Commissioner of Taxation (1983) 1 NSWLR 1 at 6-7, is not presently relevant.

9. In considering the question of admissibility it is, of course, always necessary to consider the issue which arises between the parties. In the present case an issue was whether the decision-maker, Mr Luu, had in fact taken into account in making his decision the alleged presence of the respondent, Mr Faka'osi, at the hotel brawl, a matter upon which Mr Faka'osi was not given the opportunity to comment. A statement made subsequent to the making of the decision, not under oath, to the effect that Mr Luu did not take these matters into account in arriving at his decision is, in my view, as much a narrative of a fact as would be a statement by a policeman made some time after an accident of the events he observed and falls within the category of evidence that is not (in the absence of a statutory provision to the contrary) admissible on the principles discussed by Dixon J. in Adelaide Chemical and Fertilizer Co Ltd (supra).

10. The decision of the Full court of this Court in Minister for Immigration and Ethnic Affairs v. Arslan [1984] FCA 231; (1984) 55 ALR 361 is not to the contrary. I have perused the transcript of the proceedings at first instance from which it appears that the s.13 statement in that case was sought to be tendered by counsel for the decision-maker and counsel for the person affected by the decision indicated to the court that he desired the statement to be tendered in any event. Accordingly the statement was accepted in evidence by consent. It was then used as the basis of admissions against the decision-maker at first instance.

11. On appeal in Arslan, therefore, the issue was not the admissibility of the statement in evidence but a different question, namely whether, it having been tendered by consent, it could be treated as evidence of the facts which lay behind the decision. The Court, Sweeney, St John and Morling JJ. commented as follows at 363-364:

"It seems to us that the applicant for a review of

a decision may extract from it, and use, such

statements as are admissions in his favour but the

officer, or Minister, whose decision is being

reviewed, cannot use the statement as evidence of

the facts contained therein in a self-serving way.

It is true that in Sezdirmezoglu v. Acting Minister

for Immigration and Ethnic Affairs (1983) 51 ALR

561 at 570, Smithers J. said that a statement under

s.13 is evidence of the reasons for the decision

referred to in the statement. His Honour said:

'There is a preliminary question concerning the

evidentiary status of the statement of reasons

provided by the Minister on 15 September 1983. The

statement was not in the form of an affidavit and

was merely tendered at the commencement of the

hearing. Some guidance as to the status of the

reasons can be gleaned from Givaudan and Co Ltd v.

Minister of Housing and Local Government (1967) 1

WLR 400; (1966) 3 All ER 696. In that case the

Minister was under a statutory duty to provide

reasons pursuant to the Tribunals and Inquiries Act

1958. His Honour Mr Justice Megaw said (WLR at

409): 'The document containing the Minister's

reasons is...an important document, required by

statute to be prepared for a particular and

important purpose, and it must be, and no doubt is,

regarded by the Minister as such. The whole of its

contents must be assumed prima facie, at least, to

have been inserted for a relevant purpose: namely,

the setting forth with reasonable precision and

clarity of matters which are relevant as indicating

and explaining positively or negatively the reasons

for the Minister's decision.' In line with the

thrust of these comments I take the view that the

statement of reasons provided by the Minister,

unless effectively challenged, are evidence of the

reasons for his decision.'

If one goes to Givaudan's case it is clear that, in

making the statement relied upon by Smithers J.,

Megaw J. (as he then was) was dealing with an

argument on behalf of the Minister that the

Minister did not take an irrelevant Bill or an Act

into account in making his decision. Megaw J. used

the Minister's statement of reasons as an admission

against him. In our view, the case is not

authority for the proposition that the statement is

prima facie evidence of the facts stated therein.

In any event we do not think that what was said by

Smithers J. is inconsistent with the view that we

have already expressed that the making of a

decision is not evidence of the facts that may

underlie the decision itself. Thus a statement in

a s.13 statement that the Minister's decision was

based upon his opinion that a person was of a bad

character would be evidence only of the fact that

the Minister held that opinion. It would not be

evidence that the person was, in fact, a person of

bad character."

12. In the context of the case, where the statement was tendered by consent, the statement was to be accepted as evidence against the decision-maker that the Minister had held the opinion (and presumably taken it into account) that the applicant was of bad character. The case does not stand as authority that the decision-maker could tender the statement as evidence that he had not taken into account a matter otherwise adverse to the person affected by the decision.

13. No argument was addressed to us that the statement was admissible pursuant to the provisions of Part IIIA of the Evidence Act 1905 relating to the admissibility of business records and in these circumstances it seems preferable not to decide that issue. Notwithstanding the width of the concept of a document which forms part of a record of a business there is a real issue whether it would extend to a statement prepared under s.13. Further, the Evidence Act does not, as such, render admissible the document itself, it merely renders admissible a statement in the document: Re Marra Developments Ltd (1979) 2 NSWLR 193. There will be an issue whether a s.13 statement forms part of a record of a business (in the defined sense) and of course issues both as to whether the statement is excluded from admissibility under the Evidence Act as made or obtained in contemplation of a legal proceeding (cf Atra v. Farmers' and Graziers' Co-Op Co Ltd (1986) 5 NSWLR 281) and whether the statement is, in terms of the provisions, one that is otherwise inadmissible.

14. It follows that I agree with Davies J. that his Honour was correct in rejecting the tender of the s.13 statement. With respect to Davies J., however, I cannot accept all that his Honour has written concerning the undesirability of decision-makers being subject to cross-examination.

15. Order 54 r.8 permits the Court in an application for administrative review to dispense with the attendance for cross-examination of a person making an affidavit. Whether that dispensing power will be exercised will depend upon all the circumstances of the case and in particular the issues which are raised between the parties. No doubt cross-examination directed to the materials that were before the decision-maker will be unlikely to be productive. But the more usual case is that an applicant will seek to challenge a decision on the ground that the decision-maker took into account irrelevant matters or failed to take into account relevant matters. An applicant may also, as in the present case, seek to show that the decision took into account a matter personal to the applicant in respect of which the applicant is given no chance to put his side of the case.

16. In such circumstances, which are far from rare, it may only be by a careful cross-examination of the decision-maker that the true reasons for the decision will become clear. The fact that a s.13 statement is often prepared at a time somewhat distant from the actual decision, at a time when the possibility of litigation will be obvious and often with the assistance of legal advisers attuned to the issues which are likely to arise, cannot be ignored. It would be unfortunate if this Court should be seen to be enunciating a principle of general application that leave to cross-examine will rarely be granted. Each case will depend upon its own facts; the inconvenience to the decision-maker will no doubt be a factor to be taken into account. In the end, however, the question must be determined as Lord Diplock said in O'Reilly v. Mackman [1983] UKHL 1; (1983) 2 AC 237 at 282-3 in accordance with the "justice of the particular case'.