The administrative decision‑making framework
95 By s 33 of the AAT Act, the Tribunal is not bound by the rules of evidence, may inform itself on any matter in such manner as it thinks appropriate and is directed to conduct a proceeding with as little formality and technicality and with as much expedition as the AAT Act, the investing legislation and a proper consideration of the matters subject to review, permit. The Tribunal is invested with jurisdiction to review a decision affirmed by the SSAT, by s 179(1) of the Administration Act. The Administration Act does not contain provisions which prescribe particular matters to be taken into account by the Tribunal in conducting its review.
96 Provisions such as s 33 of the AAT Act are facultative, not restrictive and serve the purpose of freeing tribunals, 'at least to some degree, from constraints otherwise applicable to courts of law and regarded as inappropriate to tribunals.' (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 628 [49] per Gleeson CJ and McHugh J) although the extent of that freedom in any given case might be 'another question' (Eshetu at [49]). Nevertheless, the Tribunal in the discharge of its review function must act judicially (that is, in accordance with the requirements of procedural fairness) and reach conclusions which have a basis in evidence having rational probative force (Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 685, per Deane J; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J). Although the Tribunal is not bound by the rules of evidence, the underlying rules of rationality that guide notions of relevance and deductive and inductive reasoning inform the process of reaching a decision that is supported by evidence (Rationality and Judicial Review of Administrative Action, Dr G Airo‑Farulla, Vol. 24, Melbourne University Law Review, 543).
97 Describing the process of reasoning adopted by the Tribunal as irrational, illogical or based upon an unsound approach to the assessment of a document (as the appellant contends) or that findings are not based on inferences of fact supported on logical grounds, may merely be an emphatic way of disagreeing with a finding of fact (Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per Gleeson CJ at [5]). It is necessary therefore to precisely identify the 'nature and quality' of the error of the administrative decision‑maker and the legal principle that attracts a particular legal consequence, such as error of law, that is, the 'legal rubric under which a decision is challenged' (MIMA; Ex parte S20/2002 per Gleeson CJ at [9]). The scope of the legal rubric is conventionally understood in terms of the well known passage from Craig v South Australia (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82] per McHugh, Gummow and Hayne JJ and as to misconceptions which might suggest an unsupportable supposition on the part of the decision‑maker, Avon Downs Pty Ltd v FCT (1949) 78 CLR 353 at 360 per Dixon J and R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd (1953) 88 CLR 100 at 120 per Dixon CJ, Williams, Webb and Fullagar JJ. As to the constraints upon a court interfering with the decision‑maker's assessment of the evidence, in exercising supervisory review of administrative decision‑making, see Attorney‑General (NSW) v Quin (1990) 170 CLR 1 at 35‑36 per Brennan J.
98 However, at common law, want of logic is not synonymous with error of law (Australian Broadcasting Tribunal v Bond, per Mason CJ at 356, with whom Brennan, Toohey and Gaudron JJ agreed) and as to inferences, 'so long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.' (his Honour's emphasis, Bond, per Mason CJ at 356). On the other hand, where a statute requires the decision‑maker to discharge particular duties, 'irrationality of the kind described by Deane J in Australian Broadcasting Tribunal v Bond may involve non‑compliance with the duty' (MIMA; Ex parte S20/2002 per Gleeson CJ at [9]). In the context of the particular statutory framework relating to protection visas under the Migration Act 1958 (Cth) and the role and duty of the Refugee Review Tribunal, Gummow and Hayne JJ (with whom Gleeson CJ agreed) in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 observed at [38] that although the question of whether protection obligations relevantly arose included a consideration of factual matters, 'the critical question is whether the determination [by the Tribunal] was irrational, illogical and not based on findings or inferences of fact supported by logical grounds' and 'inadequacy of the material before the decision‑maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error'.
99 In Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411, Black CJ, von Doussa and Carr JJ at [25] observed that want of logic in drawing an inference will not of itself constitute an error of law. Their Honours also noted, however, that a want of logic 'may sound a warning note to put one on inquiry whether there was indeed any basis for the inference drawn': see also NAMM of 2002 v MIMIA [2003] FCAFC 32 per French, Lindgren and Finkelstein JJ; MIMIA v W306/01A [2003] FCAFC 208 per French, Hill and Marshall JJ; NACB v MIMIA [2003] FCAFC 235 per Tamberlin, Emmett and Weinberg JJ; W404/01A of 2002 v MIMIA [2003] FCAFC 255 per French, Lee and Carr JJ; NATC v MIMIA [2004] FCAFC 52 per Heerey, Sundberg and Crennan JJ; VWST v MIMIA [2004] FCAFC 286 per Kiefel, Marshall and Downes JJ, applying these principles. In Minister for Immigration and Multicultural Affairs v Al‑Miahi 65 ALD 141, Sundberg, Emmett and Finkelstein JJ, said this:
[34] The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. That is because, before the inference is drawn, there is a preliminary question as to whether the evidence reasonably admits a different conclusion. Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, there is no error of law simply in making a wrong finding of fact. Even if the reasoning whereby the court reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law. A party does not establish an error of law by showing that the decision‑maker inferred the existence of a particular fact by a faulty process, for example by engaging in an illogical course of reasoning. Thus, at common law, want of logic is not synonymous with error of law. So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
100 In this case, it was open to the Tribunal consistent with s 33 of the AAT Act to receive Ms Martin's statement into evidence. It was open to the Tribunal to rely upon the statement as an explanation of the codes used by Centrelink, usual management practices at the Braddon Student Services Centre and as evidence of at least Ms Martin's hypothesis of the rate review activity Ms Lewis undertook on 24 August 2004. It was not open to the Tribunal to reach a finding of fact that the appellant did not attend the Braddon office of Centrelink on 26 August 2004 and notify a change of course, based on an inference drawn from Ms Martin's evidence. That evidence assumed that had the appellant attended the Braddon office that day, a customer counter officer would, on balance, have been sufficiently astute to appreciate the significance of the appellant's change of course (in relation to continuing entitlements to austudy payments) and would, on balance, have made a note for others of it or have made directly an electronic entry in the appellant's file record.
101 The Tribunal's logic in drawing such an inference was faulty and the evidence of the document together with Ms Martin's explanation of it was not evidence that supports the finding. However, the Tribunal was entitled to conclude that the computer file note did not resolve the contest on the evidence one way or the other and did not corroborate the oral evidence of the appellant. The Tribunal was entitled to consider whether the document in conjunction with the Tribunal's assessment of the oral evidence given by the appellant as to the steps he said he took or the method he claimed to have adopted to notify Centrelink of a change of course, satisfied the Tribunal that the appellant had, in fact, notified the respondent of a change in his course of study.
102 The finding of fact that the appellant did not notify the respondent was a finding open to the Tribunal. Having reached that conclusion, the Tribunal could not be satisfied that the debt owed by the appellant to the Commonwealth 'is attributable solely to an administrative error made by the Commonwealth' or that the appellant 'received in good faith the payment or payments that gave rise to … the debt', for the purposes of s 1237A(1) of the Act.
103 The appellant contends that the Tribunal in relying upon evidence of inconsistencies in his evidence, denied him procedural fairness on the ground of ostensible or apprehended bias or alternatively, the Tribunal was affected by actual bias on the part of the member. There is no basis for either contention. The Tribunal in evaluating the contested evidence of notification and placing weight upon inconsistencies or apparent inconsistencies in the appellant's evidence of the method of notification was doing no more than discharging its obligation to reach a decision on material questions of fact with reference to the evidence on which those findings might be based (s 43(2B) of the AAT Act). The appellant relies upon a decision of Jambajimba v Dredge 33 NTR 19 at 21. In that decision, Muirhead ACJ observed that the rejection of 'a defendant's testimony in one case, because he or she had been found unworthy of credit on a previous occasion, would be entirely wrong'. The Tribunal reached a conclusion that it could not have confidence in the appellant's account as a result of its assessment of all the contested evidence before it on the controversy of fact concerning notification. The Tribunal's conclusion that it could not have confidence in the appellant's account is not the expression of actual or apprehended bias. There is simply no content to the contention.
104 Further, there is no apprehended bias on the part of the primary judge in concluding that his Honour could not interfere with the Tribunal's assessment of the evidence and, in particular, the weight attributed by the Tribunal to the appellant's evidence of notification in light of its concern about the appellant's different versions of the method of notification.
105 A further question arises as to whether the Tribunal had a duty to call Ms Martin before the hearing so as to make inquiries of her about any matter going to the weight to be attributed to her statement or to provide the parties with an opportunity to ask questions and, in particular, to provide the appellant with an opportunity to cross‑examine Ms Martin. One immediate difficulty is that on 9 February 2007 the respondent offered at the resumed hearing to make Ms Martin available to give evidence but neither the Tribunal nor the appellant 'indicated they had questions for her'.
106 Nevertheless, the appellant was unrepresented before the Tribunal.
107 The Tribunal undertakes a review of decisions made in the exercise of powers conferred by particular legislation (s 25(1), AAT Act). The Tribunal may determine the scope of the review by limiting the questions of fact, the evidence and the issues that it considers (s 25(4A)). The immediate parties to a review proceeding are the applicant and the decision‑maker although other interested parties may apply to be joined (s 30). The elements of s 33 governing procedure before the Tribunal have already been mentioned. The discharge of the review function will be undertaken by a proceeding which involves a hearing which ordinarily would be subject to directions which may or may not be made at a directions hearing (s 33(1A), (2), (2A)). Alternative dispute resolution processes might be invoked (Div. 3). The decision‑maker is required to lodge a statement with the Tribunal setting out findings on material questions of fact referring to evidence or other material on which the findings were based, reasons for the decision and every document relevant to the review (s 37). If the Tribunal considers that the s 37 statement is inadequate, the Tribunal may order a further statement to be provided (s 38).
108 For the purpose of reviewing a decision, the Tribunal may take evidence on oath, proceed with a hearing or adjourn a proceeding from time to time (s 40). A summons may issue to a person to appear before the Tribunal at a hearing to give evidence, produce books, documents or things in the control of the person (s 40(1A)). The Tribunal may give a party leave to inspect documents produced under a summons (s 40(1D)). The Tribunal has power to remit a matter to the decision‑maker for further consideration at any stage of a proceeding for review of a decision (s 42D). For the purposes of conducting a review, the Tribunal may exercise all the powers and discretions conferred by any relevant enactment on the person who made the decision and shall either affirm, vary or set aside the decision (s 43(1)). In giving written reasons for its decision, the Tribunal shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based (s 43(2B)).
109 Although the Tribunal is invested with these powers, the Tribunal is under no statutory duty to exercise a power of inquiry or compulsion. In that sense, the Tribunal is in an analogous position to the Refugee Review Tribunal in relation to that Tribunal's permissive powers (MIMIA v SGLB (2004) 207 ALR 12 per Gummow and Hayne JJ at [43] per Callinan J at [124]; SZJBA v Minister for Immigration and Citizenship & Anor 96 ALD 270; [2007] FCA 1592 per Allsop J [46] to [49]). The circumstances under which a decision will be invalid for failure to inquire are strictly limited. In Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169‑170, Wilcox J put the limitation in these terms:
It is no part of the duty of the decision‑maker to make the applicant's case for him. It is not enough that the court finds that the sounder course would have been to make inquiries. But in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of decision‑making power in a manner so unreasonable that no unreasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information.
110 His Honour made those observations in the context of a Wednesbury unreasonableness claim. In Visa International Service Association & Anor v Reserve Bank of Australia (2003) 131 FCR 300, at 430, Tamberlin J accepted that a duty to inquire might arise 'in some circumstances' but observed that the duty can be founded on the ground of a duty to take into account relevant considerations (Tickner v Bropho (1993) 40 FCR 183 at 197‑199; Luu v Renevier (1989) 91 ALR 39 at 50). The circumstances that enliven the Prasad principle as a possible exception to the general principle accepted by Wilcox J of no duty to inquire, involve acceptance that there is obvious material available to the decision‑maker centrally relevant to the decision to be made and no attempt has been made to obtain that information before the decision‑maker reached a decision. The emphasis of Wilcox J upon Wednesbury unreasonableness (as that concept is properly understood) in formulating that test demonstrates the very difficult burden an applicant must discharge in order to establish a duty to investigate, as a matter of procedural fairness.
111 In undertaking the review of the SSAT's decision, the Tribunal adjourned the hearing of the proceeding on two occasions. The respondent filed Ms Martin's statement in order to address the document and the appellant was given an opportunity to make submissions about the evidential significance of the computer file note in the context of his oral evidence. The appellant relied upon the note as corroboration of his oral evidence of notification on 26 August 2004. The appellant had no questions he wished to put to Ms Martin. The Tribunal admitted Ms Martin's statement into evidence and considered the document and the attachments. A decision by the Tribunal not to make inquiries of Ms Martin and not to take steps to bring Ms Martin before the Tribunal at a hearing is not an exercise of decision‑making power in disregard of obvious material readily available and centrally relevant to the decision to be made.
112 Similarly, the Tribunal is under no obligation to adjourn the hearing so as to make Ms Martin available for cross‑examination by the appellant (Omran v Australian Postal Commission (1992) 15 AAR 232 per Wilcox, von Doussa and O'Connor JJ).