Case: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298
Outcome: considered
Although the observation of the Tribunal at [66] concerning Mr Green's failure to call certain witnesses could be construed adversely to Mr Green's case, there is no indication that those persons could have provided material to assist his case. On the other hand, however, having regard to the fact that the Tribunal's proceedings are inquisitorial in nature and the observations in Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 at 308 are not applicable, there is no indication in this case that any particular adverse inference was drawn or suggested on the basis of the fact that the witnesses did not give evidence orally and that the omission to ask them to do so rested with Mr Green (and not on the Tribunal). 42 Finally, it is said that there were three findings of fact made by the Tribunal for which there was no evidentiary basis. This submission relies on an interpretation of the Tribunal's reasons at [109]: 'The applicant has an aunt (his father's sister) in England, though he says he does not remember her. While his aunt could not necessarily be expected to welcome the applicant into her home, it is not improbable that she would be able to give him some guidance on becoming re-established in the United Kingdom. The skills he has developed as a painter would be as useful to him there as they are here, and indeed the larger market might be to his advantage. He has no business ties within Australia. Nothing in the evidence suggests that he would be unable to obtain [the drug facilitating his rehabilitation] in the United Kingdom and thereby continue his drug rehabilitation.' 43 When closely examined, it is apparent that each of the views expressed by the Tribunal at [109] is in tentative and speculative terms and that they are not expressed as findings of fact. The general effect of the observations is that there is simply no evidence to support findings to the contrary. So far as the observation in relation to Mr Green's aunt is concerned, this is a general statement which does not appear to have been given any particular weight. The statements in this paragraph really amount on their face to an expression of views which were open to the Tribunal in the circumstances of this case. 44 I therefore do not consider that there was any failure by the Tribunal to provide procedural fairness in this case. 45 For the reasons which I have given above in relation to the need to consider mitigating factors pursuant to paragraph 2.8 of the Direction, this application is granted and the matter is remitted to the Tribunal for determination in accordance with these reasons. As the second respondent filed a submitting appearance, it is appropriate that the costs of the application are borne by the first respondent. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 20 February 2008 Counsel for the Applicant: Ms S. Higgins Solicitor for the Applicant: Ebsworth &amp; Ebsworth Lawyers Counsel for the Respondent: Ms B. Nolan Solicitor for the Respondent: DLA Phillips Fox Date of Hearing: 25 January 2008 Date of Judgment: 20 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/125.html