Case: Pham v Secretary Department of Employment and Workplace Relations [2007] FCA 2049
Outcome: cited
First, it is possible that the relevant material could have assisted the applicant in his case before the Tribunal. However, as Gray J observed succinctly in Pham v Secretary Department of Employment and Workplace Relations [2007] FCA 2049 at [11] , the Tribunal is empowered to make its own decision on whatever material is before it at the time when it makes that decision. 45 Second, if the applicant had required further time to adduce evidence before the Tribunal, he should have sought an adjournment of his hearing before the Tribunal. In circumstances where a party before the Tribunal requires an adjournment in order to adduce evidence necessary to the conduct of its case, it is appropriate that the Tribunal entertain and give proper consideration to such an application. In this case, however, it does not appear that the applicant made an application for an adjournment. 46 I note that the applicant was not represented before the Tribunal. It is clear that it can be a daunting prospect for an applicant to represent himself in such circumstances, and his entitlement to seek an adjournment of the proceedings may not be apparent. However it does not appear that, at the Tribunal hearing, the applicant pressed his need for this unavailable material, or explained to the Tribunal why it was necessary to its decision. 47 Third, from his submissions at the hearing before me, it appears that, although the applicant had written to the Tribunal Member's associate to inform the Tribunal Member of the issue prior to the hearing, his indications to the Tribunal as to the importance of this material at the actual Tribunal hearing were equivocal (TS p 10 ll 35-37). As I noted earlier, the Tribunal is empowered by s 40(1A) AAT Act to obtain necessary information by compulsion if necessary. If the applicant had made known to the Tribunal the importance of the relevant information, it is possible that he could have made an application to the Tribunal for the information to be made available. In this case, however, he clearly did not. 48 Fourth, in this case it is clear that the Tribunal had explained to the applicant approximately one month before the hearing that he needed to prepare for the Tribunal hearing. The Tribunal member at [24]-[25] observed, in relation to the applicant's statement at the Tribunal hearing: [24] Consequently, his statement had been rather brief. It should be noted, however, that at the telephone directions hearing on 19 June 2007, I had stressed to Mr Rountree the importance of ensuring that all his witness statements were filed and served on time, and at the very latest in time to allow two clear business days to elapse before the first day set down for the hearing, otherwise the tribunal could not have regard to any document or information that he might seek to present in support of his case, pursuant to ss 500(6H) and (6J) of the Act. I also pointed out that the statement or statements could be handwritten and need not be in any particular form; what was essential was that he gave notice of the matters on which he intended to rely. The applicant thus had ample time to attend to the matter. [25] At the hearing I pointed out to the applicant, however, that he was free to rely on any information that he had previously supplied to the respondent, such as earlier written statements in the G documents, without infringing ss 500(6H) or (6J). 49 I note that, although the applicant claims that he was unable to put material favourable to him before the Tribunal, there appeared nothing to prevent him from adducing evidence from his partner, her children, or other supporters in time for the Tribunal hearing. 50 Finally, although the applicant sought to obtain material in the nature of prison reports in order to present what he describes as "a more balanced view" of his character to the Tribunal, from the applicant's description this material seems, at most, relevant to the issue of his recidivism. In this respect, however, it appears from the Tribunal's decision that there was already a considerable amount of information before the Tribunal in relation to the risk of recidivism to which the Tribunal had regard (at [77]-[79]). The Tribunal clearly took into consideration information favourable to the applicant, including his progress towards rehabilitation, his recovery from alcohol addition, and his commitment to his partner and her children (at [79]). I also note that the Tribunal was at pains, as demonstrated at [53]-[59] of the Reasons for Decision which I have set out earlier in this judgment, to acknowledge and consider the applicant's case, including his version of previous events relevant to his application. However the Tribunal was persuaded by other relevant factors detailed in the Reasons for Decision that the applicant was at low-medium risk of recidivism.