Statements of Reasons: Issues of Legality and Best Practice
Administrative Appeals Tribunal
Via Microsoft Teams
1. Introduction
Deputy President Rayment has kindly invited me to speak around issues bearing on the provision of reasons, interpreters, and unrepresented litigants. Within these broad perimeters, I will focus on three questions.
- Why give reasons?
- What requirements govern the preparation of a statement of reasons according to law?
- For whom are reasons written?
Each of these questions is intertwined with the issue of according administrative justice to unrepresented litigants in our culturally and linguistically diverse society which I consider in particular in addressing the last of these issues.
In speaking on these subjects, I readily acknowledge that I, as much as anyone here, continue to be on a learning curve. In common with administrative decision-makers, judges also face the challenge of producing written reasons for our decisions and the scrutiny of those reasons on appeal. I look forward to hearing also from members attending today about your experiences to the extent that time permits today, as well as those of the panel.
2. Why provide a statement of reasons?
From the perspective of a member of the Administrative Appeals Tribunal (Tribunal), the most obvious reason to provide a statement of reasons is to comply with the statutory obligation to do so either on request within a specified time such as under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act)[2] or at the time of decision or notification of the decision such as under s 430 of the Migration Act 1958 (Cth).
Statutory obligations to provide reasons are intended to serve a number of important purposes. As Professors Robyn Creyke and John McMillan have explained:
- they "encourage better and more rational decision-making";
- they "enhance government transparency and accountability and give legitimacy to a decision by showing that the decision was not made arbitrarily and that issues raised by interested parties are being adequately considered"; and
- in compliance with procedural fairness, they enable those affected by the decisions to decide whether the decision has been lawfully made and why they have not succeeded.[3]
Personally I also find that being required to justify my decision in a written statement of reasons is a great personal discipline which assists in ensuring that I have addressed all of the relevant issues and applied the correct principles – at least, so I hope! Decision-making by the Tribunal is no different in this respect. As the Administrative Review Council has observed:
… the process of writing reasons materially assists decision-makers during the process – facilitating the detailed consideration of all necessary issues. The process of providing for reasons disciplines a decision-maker's thinking.[4]
From a broader perspective, providing statements of reasons which are clear and deal fairly with the issues has the capacity to enhance public confidence in the Tribunal as an institution entrusted with very considerable powers across a broad range of subject matter to affect the lives of members of the community and the administration of laws by government.
Finally, reasons provide evidence on an application for judicial review in the courts by which the legality of the Tribunal's decision may be assessed as opposed, for example, to the Tribunal member giving evidence orally or by affidavit of her or his reasons. A statement of reasons therefore facilitates the function of the courts on judicial review in ensuring that a lawful decision has been made.[5]
This last point highlights the importance of preparing contemporaneous reasons or, where reasons may be required only upon request, of ensuring at least that an accurate record is kept of the reasons for the decision in order to assist in preparing a statement of reasons later if necessary. Not only is this best practice,[6] but there have been cases where a court on judicial review has rejected the tender of reasons prepared after the decision in question because it was not satisfied on the evidence that they were in fact the reasons of the decision-maker when the decision was actually made. For example, in one such case, the reasons were prepared over a month later and referred to evidence which came to light only after the decision was made.[7]
3. What requirements govern the preparation of a statement of reasons according to law?
The ADJR Act, the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and generally the other legislation applied by the Tribunal specify the matters which a statement of reasons must contain, namely:
- the decision;
- the findings on material facts;
- the evidence or other material on which those findings are based; and
- the reasons for the decision.[8]
A failure to comply with these requirements may establish jurisdictional error such as a failure to consider a relevant consideration to the exercise of the power or found an inference that the Tribunal failed to ask itself the right question under the statute.[9]
Taking these elements in turn, first the decision in question will always be what the Tribunal member considers to be the correct and preferable decision at the time that she or he makes the decision.[10] The reasons should also identify the source of the Tribunal's authority to make the decision and the legislation being applied.[11] It is generally wise to quote the relevant statutory provisions, rather than summarising or paraphrasing them which may inadvertently introduce a change in their meaning.[12]
Secondly, findings on material facts are findings critical to the decision in the sense that the existence or non-existence of each one can affect the outcome of the decision. This means in other words, the findings on those questions of facts which the member regarded subjectively as material to the decision, as opposed to those which a Court on judicial review might objectively regard as material.[13] It follows that where the Tribunal does not set out a finding on some question of fact or address a piece of evidence, this will generally indicate that it made no finding on that matter. In turn, this may indicate that the Tribunal did not consider the matter to be "material". This may or may not be demonstrative of jurisdictional error, depending upon the statutory context and all of the relevant circumstances.[14]
Findings on material facts can of course be established directly by the evidence. For example, the Tribunal member may find that an applicant holds Iranian citizenship based upon her Iranian passport. In other cases, the finding may be inferred, filling in gaps in direct evidence. For example, a Tribunal member may decide that a visa applicant had taken steps to convert to Christianity and attended church regularly in order to obtain a protection visa based upon a number of factors. These might include that she or he had only taken steps to convert after applying for the protection visa and had a poor understanding of the basic tenets of Christianity. Where findings of fact are inferred, the statement of reasons must set out the primary facts from which the inference was drawn and explain why the inference is properly drawn from those facts. Speculation, guesswork, suspicions and unfounded assumptions are not sufficient.
Thirdly, as this example also illustrates, the reasons should identify the evidence which was considered relevant and credible in making each material finding of fact and explain why particular evidence was preferred over other evidence where there is a conflict.[15]
Fourthly, the reasons are the thread which weave the evidence and the findings together into a logical fabric and tie them to the statutory criteria, explaining all of the steps in the reasoning process which led to the decision without leaving any holes or gaps.[16] In short, it is not sufficient to state conclusions without explaining why those conclusions were reached.
Finally, reasons are ultimately evidence of what is intended to be, and must at law be, a real consideration of the issues. Thus extensive plagiarising or parroting of submissions without attribution may show a failure by the decision-maker to engage in an active intellectual process and thereby establish a constructive failure to exercise jurisdiction.[17] Equally the use of formulaic or template sentences - for example, "I have considered all relevant matters including all of the evidence and material provided by or on behalf of the visa applicant" - are largely meaningless unless they are backed up by proper reasoning and analysis.
Writing reasons therefore requires that the decision-maker have the courage and integrity to explain why she or he considers that the decision reached is the correct and preferable decision, addressing the consequences of that decision for the individual in relevant respects. As to this, Allsop CJ (with whom the remainder of the Full Court agreed) explained in Hands v Minister for Immigration in the context of visa cancellation decisions on character grounds:
… where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people.[18]
In that case, the Minister had found that Mr Hands (whose visa had been cancelled) may experience short term hardship if returned to New Zealand but over time would be capable of settling in New Zealand without undue difficulty. Allsop CJ held that there was no rational or probative evidence to support the Minister's conclusion that this emotional and psychological hardship would be short term despite this being "a central and crucial consideration".[19] Rather, Allsop CJ held that:
All the material, if considered, would lead any reasonable person to a conclusion that this decision, unrevoked, will cause lifelong grief and psychological hardship to a number of people, including Mr Hands. …The separation of Mr Hands from his community, his wider family, his partner, his children, grandchildren and step grandchildren is a life changing decision, potentially life destroying.[20]
It is true that the consequences in the decision in Hands affected the most fundamental of human rights – rights to movement, family, home, livelihood, and even potentially to life. But that is not to say that his Honour's observations are relevant only in such cases. There remains in every case the obligation upon the Tribunal member to give a substantive consideration to the submissions and the evidence, confronting and dealing with them in a real sense.[21]
4. Who are you writing the reasons for and how might that impact on the way in which they are drafted?
Reasons will provide evidence of the decision-maker's subjective thought processes in reaching her or his decision which may or may not show error on judicial review. However, while they must address the relevant statutory criteria and apply the law, this does not mean that the drafting of reasons should be approached with an eye to making them "judicial review proof" as, among other difficulties which this may cause, they are liable to become unreadable. Examples I have seen where this approach has been adopted include reasons replete with repetition and exceptionally long sentences littered with caveats and sub-caveats. Rather, in line with the purposes of providing written reasons, reasons should be drafted in the first instance so as to explain to the losing party why she or he lost. So understood, written reasons are an aspect more broadly of according the person procedural fairness and a hearing otherwise according to law.
As a result, it is helpful to think about ways in which the statement of reasons might be made "user-friendly", bearing in mind that those affected by the decision may, for example, be unrepresented and have limited education or limited or no fluency in English. It is also a helpful technique to set out an introduction which effectively "parachutes" the reader into the decision, summarising in plain English the issues for decision and how they have been resolved. A concern that a summary of this kind might oversimplify the reasons and be misconstrued as erroneous could be met by an explanation which introduced the summary stating something along the lines that "At the risk of oversimplification, the primary reasons for my decision may be summarised briefly as follows…."
It is also helpful to use headings and subheadings and, at least where the reasons are lengthy, to consider including an index. This can be automatically generated if the various heading levels are designated correctly. Also using the outline function to the side of the document in programmes such as MS Word can provide a useful way to navigate around the document in the course of drafting the reasons, keeping the structure of the reasons at the forefront of your mind. These techniques are particularly helpful in decisions which are lengthy and complex.
Setting out the main headings at the start of writing your reasons by reference to each of the issues and statutory criteria which need to be addressed can also help overcome writer's block. They can provide the first step which, as the ancient Chinese philosopher Lao Tzu wisely said, begins the thousand mile journey. Another technique which personally I have found helpful is to pose headings as questions. This helps in endeavouring to approach the issues with an open mind directed to the matters in issue.
Finally, I would commend to you Justice Griffith's advice as to the importance of starting to draft your reasons while the matter is still fresh in your memory. As his Honour explained:
Getting started on producing a statement of reasons can often be a challenge. All the more so if the case is a difficult one and may have occupied more than a day's hearing time. It is so easy to put those types of cases in the drawer and focus attention on less challenging matters. Generally, this is most unwise. Complex cases normally get harder the longer you leave them. At the very least, try to get in writing your primary thoughts on how a complex case should be resolved. Don't fall in to the temptation of believing that there will be a divine inspiration if you park the case and come back to it a few months later.[22]
5. Taking into account cultural and linguistic considerations
Finally, the hearing and pre-hearing processes must be conducted in a way that takes into account such factors as a lack of legal representation, lack of facility in English, cultural sensitivities, trauma, and mental health issues. Equally, those factors may play a role in the reasoning process itself and in the manner in which reasons are expressed.
In this regard, there are many helpful publications and resources available online, including on the website for the Judicial Council on Cultural Diversity (JCCD). [23] These include the JCCD Recommended National Standards for Working with Interpreters in Courts and Tribunals, short videos and factsheets on such topics as assessing whether an interpreter is necessary, identifying barriers to justice for Aboriginal and Torres Strait Islander women and migrant and refugee women, and using plain English, and cultural diversity e-Learning tools produced by the Judicial Commission of NSW.
Clearly there is much that could be said about these issues. I will stress just one in the time remaining – that is, to sound a note of particular caution in placing weight upon perceived inconsistencies where evidence is being interpreted, especially where an interpreter is not available at the NAATI accredited Professional Interpreter level (formerly level 3).
In this regard, while there are 112 NAATI-accredited languages and varying accreditation standards within those languages, more than 300 languages are spoken in Australia, including indigenous languages. Indeed, even to speak of 300 languages is to mask the complexity of the issue given the prevalence of dialects within those broad language descriptions.[24] For native English speakers, it can be difficult to appreciate the extent of differences between dialects in other languages. As Kristen Zornada and I have elsewhere explained, when we think of differences between Australian English and American or British English, we usually point to a few different words but at the end of the day we know that a "jumper" is the same as a "sweater", that "fries" are "chips", and "chips" are "crisps".[25] However, as we also explained:
In many other languages the differences occur not just in particular words or accents, but in grammatical structure and tense usage. For example, in Italian, while the remote past tense is used in written standard Italian to refer to events that occurred historically, speakers of some dialects native to the south of Italy employ it even when referring to events that may have just happened.[26] Conversely, use of the remote past tense in speech died out in many northern dialects hundreds of years ago.[27] Such differences occur in other languages and other dialects,[28] and it is not difficult to imagine the impact a misinterpretation of tense may have, for example, on applicants describing when relevant events took place.[29]
A practical example of how the quality of interpreting can impact on the assessment of a person's credibility can be found in the decision in SZOBN v Minister for Immigration.[30] In that case the Court overturned a decision by a Tribunal on the ground that it was unfair where a pattern emerged from intermittent errors in interpreting. The applicant in that case was a citizen of India, and claimed to fear persecution in her predominantly Hindu region because she was Christian. When questioned by the then Refugee Review Tribunal through a Malayam interpreter as to what she knew about Christianity, her answers were that "Jesus died for poor people", "I was able to see my father at church" and that she goes to church to get "Quarbana", a Malayam word that was not interpreted.
Given her apparent lack of knowledge of basic Christian beliefs, the Tribunal found that she was not credible and disbelieved her claims. However, evidence was led on judicial review of an interpretation by another Malayam interpreter of the recording of the Tribunal hearing. It was his evidence that she had in fact said that Jesus died for "our sins", I was able to see "the Pope", and I go to church to get "the Eucharist". These answers demonstrated knowledge of the meaning of Jesus' life, the Pope and the Eucharist, being important aspects of Christian belief. As a result the Court found that the Tribunal may well have formed a different view or pursued more details by further questioning if her answers had been accurately interpreted.[31]
6. Concluding thoughts
By way of conclusion, I would commend a general approach to the exercise of your powers not simply by complying with the strict letter of the statute, but guided by fairness and respect for the dignity of those whose rights you decide. Such concepts underpin the fundamental values of the common law which are increasingly regarded as foundational to the making of lawful decisions, as the jurisprudence reflected in decisions such as Hands illustrates.
[1] Justice of the Federal Court of Australia; LLB (Hons, Adel), LLM, PhD (Cantab), FAAL. I wish to express my sincere thanks to my associate, Anne Mignone, for her invaluable assistance with research and careful proofing.
[2] Section 13 of the Administrative Decisions (Judicial Review) Act 1977 creates a right to obtain written reasons for a decision where a person has a right to apply for judicial review in the Federal Court or the Federal Circuit Court under s 5 of that Act. Reasons then have to be provided within 28 days of the request
[3] Robin Creyke and John McMillan, Control of Government Action: Text, Cases and Commentary (Lexis Nexis, 5th ed, 2019) at 1200-1202. See also Justice John Griffiths, 'What are Adequate Reasons?' (Speech delivered to the Council of Australasian Tribunals' Decision-Writing Program, Sydney, 12 & 13 March 2020) [6]-[8]; Administrative Review Council (ARC), Federal Judicial Review in Australia, Report No. 50 (2012) (ARC Report No. 50) 152-155 and ARC, Decision Making: Reasons (Best Practice Guide 4) (2007) 1 (available at: www.ag.gov.au/legal-system/administrative-law/administrative-review-council-publications (viewed 10 June 2020)).
[4] ARC Report No. 50, 161.
[5] See e.g. Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137; (2009) 179 FCR 554 at [41] (the Court).
[6] ARC Report No. 50, 161.
[7] Minister for Immigration and Ethnic Affairs v Taveli [1990] FCA 229; (1990) 23 FCR 162. See also e.g. Phosphate Resources Ltd v Minister for Environment, Heritage and the Arts (No. 2) [2008] FCA 1521; (2008) 251 ALR 80.
[8] See also s 25 D, Acts Interpretation Act 1901 (Cth) which provides that: "Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression "reasons", "grounds" or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based."
[9] See e.g. Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, 330 [5] (Gleeson CJ); Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCAFC 137; (2009) 179 FCR 554, 563 [50] (the Court).
[10] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.
[11] ARC, Best Practice Guide 4 at 7.
[12] Ibid.
[13] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, 331 [9]-[10] (Gleeson CJ), 346 [68]-[69] (McHugh, Gummow and Hayne JJ).
[14] Ibid.
[15] See generally ARC, Decision Making: Evidence, Facts and Findings (Best-Practice Guide No. 3) (2007).
[16] ARC, Best Practice Guide No. 4 at 8.
[17] Justice John Griffiths, 'What are Adequate Reasons?' (Speech delivered to the Council of Australasian Tribunals' Decision-Writing Program, Sydney, 12 & 13 March 2020) at [30]-[31].
[18] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628,630 at [3].
[19] Ibid 640 [45].
[20] Ibid 640 [44]-[45].
[21] Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643, 654 [45] (Rares and Robertson JJ).
[22] Justice John Griffiths, above n 16 at [18].
[23] Judicial Council on Cultural Diversity, Resources <www.jccd.org.au> (viewed on 10 June 2020).
[24] See Shu Uan Eao v Commissioner of Taxation (Cth) [2009] FCA 992 [11]-[13] (Middleton J), summarising the difficulties involved with locating a speaker of the same dialect as the witness in that case, and the subsequent finding that the interpretation was so inadequate as to deny the witness the opportunity to put their evidence before the Administrative Appeals Tribunal.
[25] Justice Melissa Perry and Kristen Zornada, "Working with Interpreters: Judicial Perspectives", [2015] (Autumn) Bar News 20 at 20.
[26] See Patrizia Cordin, 'Tense, mood and aspect in the verb' in Martin Maiden and M. Mair Parry (eds), The Dialects of Italy (Routledge, 1997) 88.
[27] See Martin Maiden, A Linguistic History of Italian (Routledge, 2014) 139.
[28] See generally, Rainer Dietrich, The Acquisition of Temporality in a Second Language (1995).
[29] Perry and Zornada, above n 24 at 20.
[30] [2010] FCA 1280; 119 ALD 260.
[31] Ibid 267-8 [30].
