Minister for Immigration Local Government and Ethnic Affairs v Taveli

(1990) 23 FCR 162

---

(Judgment by: French J)

Minister for Immigration Local Government and Ethnic Affairs
vTaveli

Court:

Judges: Davies J

French JHill J

Legislative References:
Ombudsman Act 1976 (NSW) - The Act
Freedom of Information Act 1982 (NSW) - The Act
Administrative Decisions (Judicial Review) Act 1977 - s 5(2)(b); s 13; s 16(1)
Administrative Appeals Tribunal Act 1975 - s 28
AAT Act - s 43
Broadcasting Act 1942 (NSW) - s 40B(1)(d)
Migration Act 1958 - The Act
Evidence Act 1905 - Pt IIIA
Civil Evidence Act 1968 - The Act
Commonwealth Evidence Act 1905 - s 7B
Tribunals and Enquiries Act 1958 - The Act

Case References:
Williams v Lloyd - (1933-4) 50 CLR 341
Sezdirmezoglu v Minister for Immigration and Ethnic Affairs - (1983) 51 ALR 561
Sezdirmezoglu v Acting Minister for Immigration and Ethnic Affairs - (1983) 51 ALR 561
Sezdirmezoglu and Anor v Acting Minister for Immigration and Ethnic Affair - (1983) 51 ALR 561
Ridge v Baldwin - (1964) AC 40
R v Waltham Forest LBC ex parte Baxter - (1988) 2 WLR 407
R v Supplementary Benefits Commission ex parte Singer - (1973) 1 WLR 713
R v Southamptom Justices ex parte Green - (1976) 1 QB 11
R v Northumberland Compensation Appeals Tribunal, Ex parte Shaw - (1952) 1 KB 338
R v Home Secretary ex parte Khawaja - (1984) AC 74
R v District court of Queensland Ex parte Thompson - (1968) 118 CLR 488
Public Service Board of New South Wales v Osmond - (1986) 159 CLR 656
Public Service Board of NSW v Osmond - (1986) 159 CLR 656
Park Oh Ho v Minister for Immigration and Ethnic Affairs - (1989) 64 ALJR 34
O'Reilly v Mackman - (1983) 2 AC 237
O'Reilly v Mackman - (1983) 2 AC 237
Minister for Immigration and Ethnic Affairs v Arslan - (1984) 55 ALR 361
Minister for Immigration and Ethnic Affairs and Anor v Arslan and Anor - (1984) 55 ALR 361
Lutterell v Reynell - (1671) 1 Mod 282; 2 Hawk PC 431
Kioa v West - (1985) 159 CLR 550
Iveagh v Minister of Housing and Local Government - (1964) 1 QB 395
Givaudan and Co Ltd v Minister of Housing and Local Government - (1967) 1 WLR 400
George v Secretary of State for the Environment - (1979) 77 LGR 689
Edwards v Bairstow - (1956) AC 14
Dalton v Deputy Commissioner of Taxation (NSW) - (1985) 7 FCR 382
Burns v Australian National University - (1982) 40 ALR 707
Baldwin and Francis Ltd v Patents Appeal Tribunal and Ors - (1959) AC 663
Baldwin and Francis Ltd v Patents Appeal Tribunal - (1959) AC 663
Atra v Farmers' and Graziers' Co-Op Co Ltd - (1986) 5 NSWLR 281
Ansett Transport Industries (Operations) Ltd v Secretary Department of Aviation - (1987) 73 ALR 193
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation - (1983) 1 NSWLR 1
Adelaide Chemical and Fertilizer Co Ltd v Carlyle - (1940) 64 CLR 514
ARM Constructions Pty Ltd v Deputy Commissioner of Taxation - (1986) 65 ALR 343

Hearing date:
Judgment date: 31 May 1990

---

Judgment by:
French J

Introduction 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.

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.

Factual Background

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

The Grounds of Appeal and Contentions

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.

The second substantive ground of appeal is that his Honour failed to exercise his discretion under 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.

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".

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.

Statutory Framework

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 s 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 Sch 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.

Subsections (2) and (3) are not material for present purposes.

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.

Subsection 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 subsection (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.

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:

And the term "qualified person" is defined as:

'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.

The Admissibility of s 13 Statements

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.

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 CJ, 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 CJ in Osmond (above):

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.

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) 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) 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 (above) at 79 (Gummow J); Dalton v Deputy Commissioner of Taxation (NSW) (1985) 7 FCR 382 at 391-2 (Lockhart J).

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.

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.

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.

The issue has been discussed in two cases in this court. In Sezdirmezoglu v Minister for Immigration and Ethnic Affairs (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) 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 (above) 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.

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 LCJ 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 LJ 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.

And Sellers LJ at p 111:

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 LJ 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.

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, subs 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 (above). 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)).

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.

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) 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 (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.

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

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) 159 CLR 550. It is important to note the fact disclosed in the judgment of Gibbs CJ 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.

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.

The Detention

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.

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) 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.