FEDERAL COURT OF AUSTRALIA

Heyward v Minister for Immigration and Citizenship [2009] FCAFC 177

MIGRATION – cancellation of visa under s 501 Migration Act 1958 (Cth) – appellant declined to cross-examine deponents of affidavits before the Administrative Appeals Tribunal – whether appellant was denied procedural fairness – whether appellant was given reasonable opportunity to present his case – whether appellant denied opportunity to cross-examine makers of statements annexed to affidavits – appellant elected not to challenge evidence against him.

Administrative Appeals Tribunal Act (1975) (Cth) s 39(1)

Migration Act 1958 (Cth) s 501(2)  

Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438

Platcher v Joseph [2004] FCAFC 68

Zhang v University of Tasmania (2009) 174 FCR 366   

JULIAN HEYWARD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL

NSD 1311 of 2009

STONE, BUCHANAN AND NICHOLAS JJ

17 DECEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

THE COURT:

1                          This is an appeal from a single judge of this Court who decided that a decision of the Administrative Appeals Tribunal (“the AAT”) was not affected by jurisdictional error.  The decision of the AAT affirmed an earlier decision of the first respondent (“the Minister”) that Mr Heyward should be deported from Australia as a person whom he reasonably suspected did not pass the “character test” in the Migration Act 1958 (Cth) (“the Act”) and had not satisfied the Minister that he passed that test.  The Minister cancelled Mr Heyward’s visa (a class BF transitional (permanent) visa) under s 501(2) of the Act.  The reason Mr Heyward did not pass the character test was that he had been convicted, on 17 November 2003, in Lismore District Court, of the crime of wounding with intent to murder and sentenced to a number of years in prison.  The person he attacked in 2002, brutally battered and attempted to strangle, was a woman with whom he had previously had a relationship.  She was severely injured.

2                          The substance of the challenge by Mr Heyward before the primary judge to the decision of the AAT was that the AAT failed to comply with the rules of procedural fairness and to give him a reasonable opportunity to present his case.  The primary judge traced the procedural course of the hearing before the AAT in considerable detail.  It is unnecessary to repeat all those matters.  They may be found, by the interested reader, in the published judgment (Heyward v Minister for Immigration and Citizenship [2009] FCA 1313).  A short summary will suffice for present purposes.

3                          Upon learning of Mr Heyward’s application to the AAT, challenging the Minister’s decision to cancel his visa, Mr Heyward’s victim in 2002 applied initially to be joined as a party to the proceedings to support the cancellation of his visa.  She, her former de facto partner and their son all provided affidavits for use in the proceedings.  In due course the affidavit material was relied upon in the case for the Minister and the application for joinder was not pressed. 

4                          The affidavits gave evidence of the experiences and opinions of the three deponents.  Supporting material annexed to the affidavit of Mr Heyward’s victim contained the views of persons who had treated her, persons close to her and other people in the community in which Mr Heyward had lived.  The affidavits, and the material annexed, expressed strong views opposing the prospect that Mr Heyward might be permitted to remain in Australia.  Mr Heyward obtained legal advice about the affidavits.  The advice suggested that there were good reasons why the evidence should not be received by the AAT but, if it was received, Mr Heyward would be entitled to cross-examine each of the deponents. The legal advice was received by the AAT as a submission on behalf of Mr Heyward opposing reception of the affidavits and the annexed material. 

5                          The AAT ruled that the evidence was relevant and would be received.  Notwithstanding some prevarication, Mr Heyward chose not to cross-examine any of the deponents and chose not to contest their accounts of his conduct prior to his conviction although he asserted, in effect, that he had reformed and overcome his propensity to jealousy and to violence. 

6                          The AAT made it clear in its decision that, although it regarded the contents of the affidavits and their annexures as relevant, it would have reached the conclusion that the offence was an extremely serious one of an abhorrent nature without the affidavit evidence and on the basis of the District Court’s sentence and the sentencing remarks of the District Court judge alone.

7                          In order to challenge successfully the decision of the AAT (with the result that the matter would be remitted to it for further consideration) it was necessary to show that the processes or decision of the AAT were affected by jurisdictional error.  The primary judge concluded that they were not.  As the primary judge pointed out in the judgment under appeal, the AAT is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate.  He also pointed out that, in any event, technical rules of evidence, where they apply, form no part of the rules of natural justice and procedural fairness.  His Honour concluded that Mr Heyward had ample opportunity to consider and deal with the affidavit material and there was no failure to comply with the rules of procedural fairness on that account.  Neither was there any failure to ensure, in accordance with s 39(1) of the Administrative Appeals Tribunal Act (1975) (Cth), that Mr Heyward had a reasonable opportunity to present his case.

8                          The sole ground of the present appeal is stated as follows:

GROUNDS OF APPEAL:

1.   The learned judge was in error when he found that the AAT had not failed to comply with the rules of procedural fairness and s39 of Administrative Appeals Tribunal Act for the reasons set in the amended application filed in the Federal court…

9                          No direct attack was made on the reasoning of the primary judge.  No specific error was alleged.  Rather, as the notice of appeal foreshadowed, the judges hearing the appeal were invited simply to reach a different conclusion.  Our consideration of the appellant’s arguments, and our conclusions about those arguments, should not be misunderstood as any form of approval of the idea that the appellate process is concerned with providing an opportunity to seek different judicial views on the same material.  We would normally expect close attention to the necessity to identify and demonstrate error in the judgment under appeal.

10                        In written submissions advanced on behalf of the appellant, the challenge to the AAT decision, and to the conclusions of the primary judge, was focussed on two matters.  First, it was submitted that Mr Heyward had a right to cross-examine persons whose views were expressed or reflected in material annexed to an affidavit and this right was denied to him.  Secondly, it was argued that he should have had more assistance from the AAT about the consequences for him of not cross-examining any of the three deponents.

11                        In our view, neither submisson should be accepted.

12                        The affidavit from Mr Heyward’s victim in 2002 dealt with the impact of his conduct towards her in a number of categories.  To illustrate the impact on her, physically and emotionally, she attached four statements (from her dentist, general practitioner, remedial therapist and naturopath).  To show the effect on her family and friends she attached eight statements from members of her family and their partners and eight statements from close friends.  Finally she attached a petition signed by 151 members of the local community who, she said, knew her, her family or Mr Heyward.  The petition supported the Minister’s decision to deport Mr Heyward as he was “a threat to the safety of the Australian community”.  It was accepted on the appeal that the material annexed to the affidavit had some probative value and that no reviewable error was committed by the AAT regarding it as relevant.  However, it was argued that the AAT was bound to ensure that Mr Heyward understood that he could, if he wished, cross-examine any person whose statement was relied upon in the same way as he could cross-examine the three deponents on their affidavits.  It was further suggested that the course of proceedings demonstrated that none of those persons were available, or would have been made available, for cross-examination.

13                        Like the affidavits, the statements conveyed the recollections and opinions of identified persons about Mr Heyward and his conduct.  Apart from dealing with the aftermath of Mr Heyward’s attack on his victim, the statements were also universally condemnatory of him.  They made strong statements about his character, the risk of him re-offending (either in relation to his earlier victim or otherwise) and whether he should be allowed to remain in Australia.  Although the statements were put before the AAT as annexures to an affidavit we have no doubt that it was intended that they should be regarded as material which the AAT should take into account in the same way as the affidavits themselves. 

14                        There can be no serious issue, on the facts of the present case, that if Mr Heyward had sought an opportunity to cross-examine any of the persons whose statements were put forward an opportunity to do so would be a necessary precondition to reliance on the statement of that person.  That is not to say, however, that the AAT was bound to give Mr Heyward advice about how to conduct his case, or to suggest he should take any particular course.  The content of any obligation to ensure that an unrepresented person receives a fair hearing varies according to the circumstances of the case and the apparent capacities of that person (see Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at [26] – [33]; Platcher v Joseph [2004] FCAFC 68 at [103] – [112]; Zhang v University of Tasmania (2009) 174 FCR 366 at [40]).  There was no suggestion that Mr Heyward was inarticulate, overborne by the occasion or labouring under any disability or disadvantage which might have affected his ability to make reasonable decisions.

15                        The procedural history outlined by the primary judge showed that Mr Heyward, despite some equivocation at one point, made a firm decision not to cross-examine any of the three deponents on their affidavits.  We think the record of the proceedings also shows that his decision extended to any direct challenge to the supporting material in the form of signed statements.  Mr Heyward knew the affidavits and annexed material would be put forward in the Minister’s case before he called his own evidence.  He clearly understood the nature of the assertions contained therein.  At a point in the hearing before the three affidavits were formally introduced into evidence, and while procedural matters were being discussed, the following exchange occurred:

THE D.PRESIDENT: … if you believe that any of the things that have been said in those statements and affidavits is untrue well you can cross-examine on that if they’re called as witnesses or you can just contradict it in your own evidence as long as it’s in your statement.

…

MR HEYWARD:  …  if the evidence is going to be put in there and I have no choice in the matter I have to accept that – that it would be but I would not cross-examine anybody on any evidence …

and (shortly thereafter):

MR HEYWARD:  I wouldn’t wish to cross-examine [the victim] or anybody.  I think that enough is enough of that …

…

THE D.PRESIDENT:  Well, it’s up to you.  If you change your mind you will be able to.

16                        The position which Mr Heyward took before the AAT was that he would not attempt to excuse his conduct.  He relied, instead, on suggestions that he had overcome his problems.  He called a substantial body of evidence, which was explained and considered by the AAT, to support his contentions.  There was no suggestion that he wished to cross-examine any of the persons whose views were expressed or reflected in any of the annexed statements or the petition.  Having regard to the way he approached his case, and his stated acceptance of the gravity of his earlier conduct, that does not seem surprising.  No jurisdictional error on the part of the AAT has been established in relation to reception and use of the annexures in question.  In particular, we do not accept the submission that the AAT was, despite the course which Mr Heyward chose, obliged to counsel him further about his rights.

17                        As to the affidavits themselves, it is clear from the procedural history outlined by the primary judge that Mr Heyward was on clear notice that the decision whether or not to cross-examine was a matter for him, but if he did not the evidence would stand, in that sense at least, unchallenged.  His decision not to cross-examine any of the deponents was explained by him by reference to the position just mentioned.  It was not part of his case to challenge the gravity of his conduct in 2002.  No criticism of the AAT for allowing Mr Heyward “to apparently make a gross tactical error”, as submitted, should be accepted.

18                        No error has been shown in the analysis by the primary judge of issues which arose for consideration before him.  No further argument has been advanced on the appeal which would suggest a conclusion different than the one he reached.  The appeal will be dismissed with costs.

Associate:

Dated:         17 December 2009