Federal Court. Rule in Browne v Dunn: "if you intend to impeach a witness you are bound, whilst he is in the [witness] box, to give him an opportunity of making any explanation which is open to him". Does that rule apply to Tribunal decisions? Further, according to the hearsay rule, out-of-court representations made by a person are not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representations, with exceptions. Does the hearsay rule apply to Tribunal decisions? We summarise the answer to these and several other questions.
The questions to the Federal Court (FCA) were as follows:
Question 1: Does the rule in Browne v Dunn apply to Tribunal decisions?
Question 2: Does the hearsay rule apply to Tribunal decisions?
Question 3: Is there an "automatic, unqualified or universal rule as to when an administrative decision maker would be required to facilitate cross-examination of, or not rely on, material which emanates from a source that has not been tested by way of cross-examination in the Tribunal"?
Question 4: What is the content of the obligation to afford procedural fairness?
Question 5: Can it be said that "there can be circumstances where it would be procedurally unfair for the Administrative Appeals Tribunal to base its decision on the acceptance of a particular witness called by one party without affording another party due notice of a differing version"?
Question 6: Was the fact that the Minister tendered hearsay evidence without objection being taken by the Applicant's solicitor relevant to determining whether the Tribunal had failed to afford the Applicant procedural fairness?
Question 7: Was the fact that it was open to the Applicant to write to the Minister’s solicitors and seek from the Minister the identities of the relevant police officers that could be cross-examined concerning the hearsay evidence introduced by the Minister, and the fact that, if the Minister’s solicitors were uncooperative in that regard, it was open to the Applicant to have sought the assistance of the Tribunal, relevant to determining whether the Tribunal had failed to afford the Applicant procedural fairness?
Question 8: Was the fact that it was open to the Applicant’s solicitors to made closing submissions in the Tribunal hearing regarding the hearsay evidence tendered by the Minister relevant to determining whether the Tribunal had failed to afford the Applicant procedural fairness?
Question 9: If the Applicant's solicitor had objected to the introduction of hearsay evidence (i.e. evidence of out-of-Tribunal statements made by some police offers), would the Minister have been required to produce those officers for cross-examination?
Question 10: In the context of assessing under s 501CA(4) of the Migration Act 1958 (Cth) whether there is "another reason" for revoking the mandatory cancellation of a visa, are the non-citizen's attitude towards the conviction, his/her professed innocence before the Tribunal and his/her insight or learning concerning the relevant crime irrelevant considerations?
Question 11: If the Tribunal assigned an applicant a pseudonym to protect their identity in its decision, does it follow that the FCA should, as a matter of comity to the Tribunal, make a non-publication order pursuant to s 37AG of the Federal Court of Australia Act 1976 (Cth) preventing publication of that person's name in its decision?
The FCA answered those questions as follows:
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