Was Mr Twentyman denied procedural fairness?
82 Mr Twentyman contended, in substance, that it was procedurally unfair for the Tribunal to make three particular findings concerning his evidence in circumstances where he was not cross-examined by the Secretary's legal representative. Those three findings were: first, the Tribunal's finding (at Reasons [71]) that it did not accept Mr Twentyman's evidence that the Department told him on 1 March 2002 that he did not have to advise when he travelled overseas; second, the Tribunal's finding (at Reasons [71]) that Mr Twentyman recalled that date based on the travel records that show that he first left Australia on 2 March 2002; and third, the Tribunal's finding (at Reasons [76]-[77]) that Mr Twentyman was not co-operating with the Department's investigations at the time the cancellation decision was made.
83 Procedural fairness generally requires an administrative decision-maker to put a person who might be affected by the decision on notice of "any adverse conclusion which has been arrived at which would not obviously be open on the known material"; but that does not extend to the disclosure of the decision-maker's "mental processes or provisional views": Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [29]. Nor is it necessary to disclose the decision-maker's opinions, doubts or subjective appraisals: Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 at [413] (Kiefel J); Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9] (French CJ and Kiefel J).
84 There is no doubt that the Secretary's legal representative did not cross-examine Mr Twentyman. Does it necessarily follow that the Tribunal denied Mr Twentyman procedural fairness when it made any finding contrary to his evidence? Given the fact that Mr Twentyman was not cross-examined, did procedural fairness require the Tribunal to put Mr Twentyman on notice that it might nevertheless not accept his evidence concerning the conversation that he said occurred on 1 March 2002, or his evidence concerning his co-operation with the Department's investigations? Or was the possibility that the Tribunal might reject these aspects of Mr Twentyman's evidence, in all the circumstances, nevertheless obviously open on the known material, or constitute nothing more than the Tribunal's provisional views, doubts, or subjective appraisals of Mr Twentyman's evidence?
85 To answer these questions, it is necessary to give close consideration to the entirety of the hearing in the Tribunal, including the nature, content, and context of Mr Twentyman's evidence and the submissions made by the parties.
86 As was observed earlier, despite the fact that Mr Twentyman was represented by counsel, the hearing did not proceed in an entirely regular or orderly fashion. Mr Twentyman did not file any affidavit or written statement of his evidence. While he did give oral evidence, it is not easy to discern from the transcript exactly when he was giving evidence, as opposed to making submissions or presenting arguments. That is because Mr Twentyman regularly interjected and interrupted the submissions and exchanges between the Tribunal and both his own counsel and the Secretary's legal representative. Those interjections often contained assertions of fact.
87 These observations concerning Mr Twentyman's conduct throughout the hearing are not intended to be a criticism of Mr Twentyman. His conduct during the course of the hearing was no doubt a product, at least in part, of his bipolar condition.
88 In any event, it would appear from the transcript that Mr Twentyman gave evidence on a number of different occasions during the hearing. He was initially sworn and gave some evidence in support of an adjournment application: see Application Book "AB" 232-234. He was later recalled and gave some short evidence, including evidence concerning the conversation he said that he had with a Departmental officer in 2002. His evidence in that regard was as follows (see AB 280):
So, did anybody in your various visits to Centrelink, speak to you about your notification obligations?--- No. I went in quite a few times, in the - before and after I went away, and no one spoke to me about anything and it's all on the DIMA recording, so.
But, you - we have elicited evidence, I think, this morning, to the effect that on one occasion in 2002, you went into Centrelink and you were - and you said you were going overseas?---Yes, that's right. On my first trip, I think it was, in March.
And you, I think said, you were then told something about, if you were going overseas. What was that evidence?---If you are going - I think - no, I know what they said. After the second and third, or fourth or fifth, sixth trip, they said, "If you are going for any more than the portable time, don't bother coming and seeing us". That's only if you go for more than portable time and it's not my fault that they didn't write my name down on the computer to let them know that I went.
89 It may perhaps be observed that Mr Twentyman's evidence concerning the occasion when he says that he was told that he did not need to advise the Department when he was going overseas for periods shorter than the "portable time" was anything but clear. While it appears to have initially been suggested that this occurred during a conversation with a Departmental officer on 1 March 2002, the day before Mr Twentyman's first trip overseas, his subsequent answer suggested that it occurred during a conversation which occurred some time after Mr Twentyman had left Australia a number of times.
90 Following Mr Twentyman's evidence concerning that conversation, Mr Twentyman's counsel indicated that he had no further questions. The Tribunal then asked the Secretary's legal representative whether he had any questions for Mr Twentyman. The Secretary's legal representative indicated that he proposed to ask some questions in relation to "the lead up to the decision to cancel": see AB 280. It would appear, however, that the Tribunal first invited the Secretary's legal representative to take the Tribunal through the "key documents", which mainly comprised the Department's contemporaneous records of its dealings with Mr Twentyman. The intention, it would seem, was that if the key documents were identified, Mr Twentyman's evidence might be relevantly confined: see AB 285. The apparent deferral of cross-examination was not opposed by Mr Twentyman or his counsel.
91 Once the Tribunal was taken to the key documents, including, most significantly, documents which purported to record discussions between Mr Twentyman and Departmental officers, the Tribunal made it abundantly clear to Mr Twentyman's counsel that it might be important for Mr Twentyman to give his version of the conversations that he had with the Departmental officers: see, in particular, AB 302-303. The Tribunal pointed out that the Department's records included contemporaneous notes and that, if Mr Twentyman was going to contend that those notes were not accurate or reliable accounts of the conversations, it would be necessary for him to give evidence about the conversations: see AB 310. Mr Twentyman was subsequently recalled and his counsel asked him further questions, primarily by reference to the documents.
92 Unfortunately, it is not easy to follow much of Mr Twentyman's evidence. That is particularly the case in relation to Mr Twentyman's account of the conversations he had with Departmental officers in October 2005. Even his own counsel became somewhat exasperated. At one stage, Mr Twentyman's counsel said, in the context of Mr Twentyman's evidence concerning a conversation that occurred in October 2005 (see AB 335):
I struggle to - I don't really know how I could go about doing that. The passage of time is such that I don't think there is any way anybody could remember, least of all, Mr Twentyman, what he said 12 years ago to somebody on the phone.
93 The Tribunal responded: "[w]ell, he seems to be telling me he has very clear recollections of lots of things". There could be little doubt from these exchanges that Mr Twentyman and his counsel were on notice that there were issues concerning his evidence of the events and conversations that occurred so long ago.
94 After some brief further questioning, Mr Twentyman's counsel said (see AB 336):
I don't think Mr Twentyman's recollection of the conversations, as he is recounting them today, is based on his memory of his events 12 years ago, it is based on his recollection of what he has read in these documents.
95 It would appear that, in response to that statement, Mr Twentyman said "[e]xactly": see AB 336. Shortly thereafter, Mr Twentyman's counsel indicated that he had no further questions for Mr Twentyman and that he thought it was "a matter for submissions": see AB 338.
96 Critically, at that point, Mr Twentyman appears to have decided that he would withdraw from the hearing because he had "had enough" and because his head was "too full at the moment": see AB 340. Neither the Tribunal, nor the legal representatives, objected to Mr Twentyman leaving the hearing. It would appear that there was some genuine concern for Mr Twentyman's mental state at the time. In any event, no mention was made at that point of the fact that the Secretary's legal representative had not had the opportunity to cross-examine Mr Twentyman as he had earlier foreshadowed.
97 Following Mr Twentyman's departure from the hearing, the parties' legal representatives made detailed oral submissions. Those submissions dealt with, amongst other things, the reliability and credibility of Mr Twentyman's account of the conversations he had with Departmental officers between 2002 and 2005 and the question of whether he was co-operating with the Department's investigations in 2005. The Tribunal made it tolerably clear in the course of the submissions that there was an issue concerning the reliability of Mr Twentyman's evidence, including whether Mr Twentyman's account was effectively a reconstruction arrived at from having read the documents: see, for example, AB 354. The Secretary's legal representative also submitted, in tolerably clear terms, that the Secretary's case was that the Department's contemporaneous notes of the conversations constituted the best evidence of the conversations and that Mr Twentyman "was not available [sic] to provide recollection from that far long ago": see AB 350. It was also submitted, on the Secretary's behalf, that the conversations revealed that Mr Twentyman was not co-operating with the Department's investigations.
98 As for Mr Twentyman's evidence concerning the conversation that was supposed to have taken place in March 2002, the Tribunal pointed out to Mr Twentyman's counsel that a problem for Mr Twentyman was that the version of the conversation that Mr Twentyman had with Departmental officers in October 2005 created a problem for Mr Twentyman. The notes recorded that Mr Twentyman told Departmental officers that he had been told by his friends that he did not need to advise the Department of short trips overseas. That was inconsistent with Mr Twentyman's evidence that it was the Department who told him that in March 2002 or some later time: see AB 357. Mr Twentyman's counsel could have been in no doubt that there was a significant issue concerning Mr Twentyman's evidence that the Department had told him that he did not need to advise it of short trips.
99 The Secretary's legal representative also submitted that little weight should be given to Mr Twentyman's evidence concerning the March 2002 conversation because, while he was not cross-examined about that conversation, his evidence was "at odds with the more contemporaneous notes": see AB 364. Mr Twentyman's counsel responded by submitting that "we're bound by the rule in Browne v Dunn": see AB 365. He did not otherwise respond to the merits of the submission. Nor did he submit that Mr Twentyman should be recalled, a course which may well have been appropriate if there was truly an issue about the failure to cross-examine, particularly in light of the fact that Mr Twentyman unilaterally decided to absent himself from the hearing before cross-examination could take place.
100 Having regard to all that occurred during the hearing, it was not procedurally unfair for the Tribunal to not accept Mr Twentyman's evidence that, at some time on or after 1 March 2002, the Department told him that he did not have to advise it of short trips overseas, even though the Secretary's legal representative did not cross-examine Mr Twentyman. Mr Twentyman and his counsel were plainly on notice that there was an issue concerning the reliability of his evidence of conversations he said he had with the Department over 15 years ago. The adverse conclusion arrived at by the Tribunal was one which was open on the material and information known to Mr Twentyman and his counsel as a result of the exchanges which occurred in the course of the hearing.
101 Nor could it be concluded that there was any "practical injustice": Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]. It is abundantly clear that, even in the absence of any cross-examination, Mr Twentyman's evidence on this issue was effectively exhausted. It was clear that the Secretary disputed that any such conversation had occurred, and that Mr Twentyman maintained that it had. It was equally clear that the Tribunal had issues concerning the reliability of this aspect, and others, of Mr Twentyman's evidence. Any further evidence given during cross-examination would not have shone any further light on the issue. There is no doubt that Mr Twentyman would have continued to maintain that the conversation did occur at some stage.
102 Exactly the same can be said concerning the Tribunal's finding that Mr Twentyman's recollection of the date of the conversation was based on the Department's documents. The Department's documents recorded that, on 1 March 2002, Mr Twentyman advised the Department that he was going overseas. The documents do not record that the Department told Mr Twentyman on that day, or any other day, that he did not need to advise the Department of short trips. It is nevertheless fairly obvious that the questions asked by Mr Twentyman's counsel concerning the date of the alleged conversation, and Mr Twentyman's answers to those questions, were based on the documents. So much so appeared to be conceded by Mr Twentyman's counsel in the course of the questioning. It could scarcely be said to be unfair for the Tribunal to make a finding that Mr Twentyman's evidence about the timing of conversations was based on the documents in the absence of cross-examination in circumstances where his counsel had effectively conceded that that was likely to be the case.
103 The situation is even clearer in relation to the Tribunal's finding that Mr Twentyman was not cooperating with the Department's investigation at the time of the cancellation decision. It is readily apparent that the Tribunal's findings in that regard were based, in large part, on the Department's documentary records of the conversations and exchanges between the Department and Mr Twentyman in October and November 2005. Mr Twentyman and his counsel were plainly on notice that there was an issue concerning Mr Twentyman's evidence concerning those conversations insofar as that evidence conflicted with the Department's records. That issue was fully explored in the course of Mr Twentyman's evidence, even in the absence of cross-examination. It was also fully explored in the parties' submissions. There was no procedural unfairness.
104 It follows that ground one of Mr Twentyman's draft notice of appeal has no merit. Any issue arising from the absence of any cross-examination is best considered having regard to the principles of procedural fairness, without recourse to the rule in Browne v Dunn or s 2A of the AAT Act. In all the circumstances, Mr Twentyman was not denied procedural fairness, even though findings were made concerning the reliability of parts of his evidence in the absence of any cross-examination.