Ground 1: Did the Tribunal deny the applicant procedural fairness by giving no weight to Exhibits A5-A13?
49 This complaint relates to the Tribunal's statement (at [50] of its reasons, extracted above at [38]) that it would place "no weight" on written statements and statutory declarations from friends of the applicant and those members of the applicant's extended family who did not give oral evidence (Exhibits A5-A13). The Minister did not object to the tender of these statements, nor seek to cross-examine the writers of these statements. The applicant argues that it was a denial of procedural fairness to give no weight to a witness statement merely because the witness did not give oral evidence, in circumstances where the witness was not required for cross-examination.
50 The applicant contends that it was also a denial of procedural fairness to give no weight to these documents when he was not put on notice that his "largely itinerant history" would be a basis for rejecting the evidence in those statements. For this reason, the applicant claims he was not given a reasonable opportunity to present his case, contrary to s 39(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
51 The applicant pointed out that the Tribunal must not base its decision on a ground not relied upon by the parties or raised at the hearing, referring to Fletcher v Commissioner of Taxation (1988) 19 FCR 442 ("Fletcher"). He argued that if the Tribunal was concerned about the nature of the relationship that he had with any of the makers of the statements, the Tribunal ought to have brought that concern to the attention of the parties.
52 The applicant also submitted that, in effect, the Tribunal had fallen into jurisdictional error through its "arbitrary rejection of probative material".
53 I find none of these arguments persuasive.
54 The rules of procedural fairness are concerned with providing a person liable to be directly affected by a decision with the opportunity of a fair and impartial hearing. Impartiality is not an issue here. The relevant principles were summarised by Brennan J in Kioa v West (1985) 159 CLR 550 at 628-9:
A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise … The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. …
55 Of course, what is fair in any given case depends on the circumstances. But procedural fairness does not require the decision-maker to disclose what he or she is thinking or what provisional views he or she has formed so as to give the parties a further opportunity to comment before the decision is made: F Hoffman-La Roche and Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369, cited with approval in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 ("Alphaone") at 590-1 and SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 ("SZBEL") at [48]. As the Court put it in SZBEL, "[p]rocedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given". SZBEL was concerned with the Refugee Review Tribunal, but the principle is not confined in its operation to that tribunal.
56 Fletcher is plainly distinguishable on its facts. That case involved an appeal against a decision of the Administrative Appeals Tribunal, which affirmed a decision of the Commissioner of Taxation to disallow certain taxpayers' objections to his decision to reject their claims for deductions. The Administrative Appeals Tribunal affirmed the Commissioner's decision by purporting to exercise the discretion conferred upon the Commissioner by a provision of the Income Tax Assessment Act 1936 (Cth). The Commissioner had not himself invoked this provision, and the Tribunal did not at any stage indicate to the applicants that it might invoke this provision. As the matter was not raised, the applicants had no opportunity to be heard on the question of whether the provision should be invoked. The Full Court held that, by reason of the course the Tribunal had taken, the applicants had been denied procedural fairness. This case bears not a passing resemblance to the circumstances in Fletcher. No issue of this kind arises here.
57 In Telstra Corporation Limited v Kendall (1995) 55 FCR 221 at 230-1, the Full Court held that Telstra did not deny procedural fairness to the user of certain telephone services when it decided to disconnect the services on the basis of information, including advertisements for the use of the premises to which the services were connected, indicating that the services were being used for the purposes of prostitution. The advertisements used the term "escort services", which the decision-maker concluded in his reasons for decision was "a euphemism for prostitution". The user complained that the decision-maker had not afforded him procedural fairness in reaching this conclusion. The basis for the complaint was that he had not been informed of the decision-maker's intention to arrive at that conclusion or been given an opportunity to make submissions about it. The primary judge held that the conclusion was such an important part of the decision-maker's process of reasoning that procedural fairness required that it be communicated to the user. The Full Court disagreed. It held (at 230) that, as the content of the advertisements were known to the user, procedural fairness did not require the decision-maker to specifically communicate the conclusions he might seek to draw from them. The Court went on to say that, if those conclusions were so unreasonable that no reasonable decision-maker could have reached them, then they would have been open to attack on that basis.
58 In the present case, the applicant should be taken to have been aware of the deficiencies in the statements. The opportunity to present his case was not impeded or curtailed either by the attitude of the Minister or the silence of the Tribunal. The Tribunal's treatment of these exhibits does not amount to a denial of procedural fairness. The Tribunal did not find that the witnesses were dishonest. The mere fact that the documents went into evidence without objection or without the authors being required for cross-examination said nothing about the strength of the evidence. As the Full Court observed in Alphaone (at 591):
A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted … Within the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject's case …
59 The Full Court proceeded to point out that these general propositions are subject to qualifications in particular cases, such as:
• the right of a person the subject of the decision to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with them; and
• the right to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject of the decision "which is not an obvious and natural evaluation of that material".
60 This case does not fall within any qualification. The applicant's "largely itinerant history" was not a critical issue or factor on which the decision was likely to turn. Indeed, it was not an issue at all. It was an inference (and an inescapable one at that) from the applicant's own evidence. The Tribunal's conclusion as to the weight to be attached to the evidence contained in the statements was "an obvious and natural evaluation of that material". A brief analysis of that evidence is sufficient to support these observations.
61 The makers of the statements included three of the applicant's cousins (the children of the uncle and aunt in whose house and garage the applicant had lived between the ages of 4 and 13). They did not provide particulars as to the contact the applicant had had with them between the time he left those premises at the age of 13 and the time the statements were prepared. There is nothing in the applicant's own evidence to suggest that he had any contact with these people while he was living on and off the streets or during his several periods in gaol.
62 In so far as the makers of these statements said anything about their involvement with the applicant over the years they expressed themselves at a high level of generality. Given the applicant's account of his movements, it would have been obvious that the weight to be attached to their statements of both fact and opinion would depend on the level of contact he had had with them over the years.
63 One of his cousins asserted in her statement that "the Applicant has always been there for me" and that the applicant had been "very close" to her most of her life. Yet, on the applicant's own evidence that was unlikely. This cousin said that, if the applicant were released into the community, she would provide him with emotional and financial assistance and help him survive. What she actually meant by this was not explored.
64 Another cousin said he and the applicant were inseparable when growing up and did everything together. On the face of things, that evidence was inconsistent with the applicant's evidence. In a written statement tendered to the Tribunal, the applicant said that, unlike his cousins, he was not allowed to leave the house or go to school. Furthermore, the applicant told the Tribunal that from the age of about nine, when he started living in the garage of this cousin's house, he felt further isolated from that family. These apparent inconsistencies were unexplained.
65 One "good friend" said that, since the applicant had been in immigration detention, he had had the opportunity to speak to the applicant "on numerous occasions" but said little about the level of his contact with him before then. He said he first met the applicant 15 years earlier, and that the applicant "has always been a loyal friend who would do anything for his family and friends". How this assertion could be reconciled with the applicant's evidence of his estrangement from his family was never explained. Indeed, neither the applicant nor the people who provided these statements gave sufficient particulars of the extent of their contact to enable the Tribunal to evaluate the strength of their evidence.
66 In these circumstances, it was open to the Tribunal to attach no weight to this evidence.
67 While I accept that disregarding relevant evidence can in some cases amount to jurisdictional error (see, for example, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16), the Tribunal did not disregard the evidence. Having considered the evidence, it decided that it was not entitled to any weight. This is not a case, as the applicant contended, of the Tribunal arbitrarily rejecting probative material. The Tribunal held that the material was not probative. That conclusion, as I have already said, was open to it.
68 The proposition that treating the evidence in this way amounts to a denial of procedural fairness was said to be supported by the Migration Act. The applicant submitted, in effect, that s 500(6H) precluded the applicant from calling oral evidence. He argued that the effect of the subsection is that the Tribunal was required not to have regard to "information presented orally" unless the information was set out in a written statement given to the Minister at least two business days before the hearing. The result, he contended, was that the makers of the statements were precluded from giving oral evidence that exceeded the scope of their written statements, including evidence in relation to the applicant's "largely itinerant history".
69 Section 500(6H) provides:
If:
(a) an application is made to the Tribunal for a review of a decision under section 501; and
(b) the decision relates to a person in the migration zone;
the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.
70 The purpose of the scheme in s 500 is to prevent an applicant from changing the nature of the case, catching the Minister by surprise and forcing the Tribunal into adjourning the proceedings: Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378 at [25]; Uelese v Minister for Immigration and Citizenship (2013) 60 AAR 534; [2013] FCAFC 86 at [31]-[32]. If the oral evidence does not change the nature of the case and merely puts flesh on the bones, so to speak, it may be doubted whether it can be excluded. There seems to me to be no reason why a witness could not be called to speak to his or her statement, to correct any inaccuracies, to explain any ambiguities, or to elaborate upon certain matters as long as in so doing the witness does not stray outside the subject matter of the material covered in the statement. Indeed, the Tribunal has decided as much itself. In Kim and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 239 at [106], Block DP held that "statement" in s 500(6H) refers to a statement that contains the information to be presented orally. There would, however, be no point in having a witness merely repeat what is said in writing. As McMahon DP observed in Msumba and Department of Immigration and Multicultural Affairs (2000) 31 AAR 192; [2000] AATA 87 at [5]:
Read literally, the subsection would restrict a witness simply to reading the statement which had been previously furnished. It would preclude any information elicited by the Department's advocate by way of cross examination, unless it could be said that such information was not in support of the applicant's case. I have taken the view that the policy of the legislation at least allows examination in chief to explain or amplify material in the written statement and allows that information to be tested by way of cross-examination.
71 See, too, Reedy and Minister for Immigration and Citizenship [2011] AATA 363 at [20], which followed these cases.
72 Be that as it may, assuming that the evidence was available, there was nothing to preclude the applicant from including in the documents in the first place, or serving on the Minister supplementary statements, the material that might have given the assertions in the documents some probative value. Certainly, neither the Minister nor the Tribunal deprived the applicant of the opportunity to do this.
73 There was no denial of procedural fairness. Ground 1 must be rejected.