Minister for Immigration and Multicultural and Indigenous Affairs v Veal of 2002

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: Gleeson CJ,Gummow,Kirby,Hayne,Heydon JJ
• Judgment Date: 06 December 2005
• Neutral Citation: [2005] HCA 72,2005-1206 HCA B
• Docket Number: M16/2005
• Date: 06 December 2005

Applicant Veal of 2002

Appellant

and

Minister for Immigration and Multicultural and Indigenous Affairs & Anor

Respondents

[2005] HCA 72

Gleeson CJ, Gummow, Kirby, Hayne AND Heydon JJ

M16/2005

HIGH COURT OF AUSTRALIA

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

Immigration — Application for protection visa — Decision of Refugee Review Tribunal — Procedural fairness — Where Tribunal reviewed an unsolicited letter received by the Department of Immigration and Multicultural and Indigenous Affairs, which made allegations against the appellant — Where Tribunal did not inform the appellant of the existence of the letter or its contents — Where Tribunal affirmed decision under review and said that in reaching its decision it gave no weight to the letter — Whether procedural fairness required the Tribunal to inform the appellant of the existence of the letter or its contents.

Words and phrases — ‘procedural fairness’, ‘credible, relevant and significant’.

Migration Act 1958 (Cth), ss 418(3), 424A, 438.

Representation:

D S Mortimer SC with R M Niall for the appellant (instructed by Victoria Legal Aid)

A L Cavanough QC with J D Pizer for the first respondent (instructed by Australian Government Solicitor)

No appearance for the second respondent

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Full Court of the Federal Court made on 9 July 2004 and, in their place, order that the appeal to that Court be dismissed with costs.

1 Gleeson CJ, Gummow, Kirby, Hayne AND Heydon JJ. In June 2001, the appellant and his partner applied for protection visas. In December 2001, a delegate of the Minister refused those applications. The appellant and his partner each sought review by the Refugee Review Tribunal (‘the Tribunal’) of the refusal of their applications. After those applications for review had been made, but before the Tribunal had completed its review, the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’) received a letter about the appellant. The letter was unsolicited but not anonymous; it gave the author's name and address.

2 The author of the letter made allegations against the appellant. First, the author said that the appellant had admitted that he had been accused of killing a person prominent in the political affairs of the appellant's country of origin (Eritrea). Secondly, the author alleged that the appellant was in fact a supporter of, and working for, the government of Eritrea. The author concluded the letter by advising the Department ‘to keep [this] information secret’.

3 When an application for review is made to the Tribunal, s 418(3) of the Migration Act 1958 (Cth) (‘the Act’) 1 obliges the Secretary to the Department, as soon as is practicable after being notified of the application, to give to the Registrar of the Tribunal, all documents in the possession or control of the Secretary considered by the Secretary to be relevant to the review. The Department sent the letter to the Tribunal. But it seems that it sent the letter after the Secretary had transmitted documents to the Tribunal in the intended performance of the obligation imposed by s 418(3).

4 In conducting its review, the Tribunal did not tell the appellant that it had received the letter; the Tribunal did not tell the appellant that the allegations made in the letter had been made; the Tribunal did not ask the appellant about the substance of any of the allegations made in the letter.

5 The Tribunal affirmed the decisions not to grant protection visas to the appellant and his partner. At the end of its reasons, the Tribunal said that in reaching its findings it ‘gives no weight’ to the letter sent to the Department and forwarded to the Tribunal. The Tribunal said:

‘The writer of that letter makes clear that the material therein is provided confidentially. The Tribunal has been unable to test the claims made in the letter and, accordingly, gives it no weight. The Tribunal has decided this matter solely for reasons outlined above.’

The Tribunal went on to say that, because the letter had been provided in confidence to the Department and the Tribunal considered that it was in the public interest that the content of the letter be regarded as non-disclosable information for the purpose of s 424A(3)(c) of the Act, the Tribunal made a direction (under s 440(1) of the Act) that the content of the letter not be published or disclosed.

6 The appellant applied to the Federal Court of Australia for relief under s 39B of the Judiciary Act 1903 (Cth). In his application, as amended, he alleged, among other things, that he had been denied procedural fairness. He succeeded at first instance 2, but the Minister appealed to the Full Court of the Federal Court. By majority (Whitlam and Mansfield JJ; Gray J dissenting), that Court allowed the Minister's appeal 3. By special leave, the appellant appeals to this Court.

The issue

7 In the appeal to this Court, the appellant and the Minister treated the determinative question as being whether procedural fairness required the Tribunal to inform the appellant of the existence of the letter, or its contents, before the Tribunal decided to affirm the refusal to grant the appellant a protection visa. That question, framed as it is by reference to common law principles of procedural fairness rather than by reference to the application of particular provisions of the Act, should be answered ‘yes’. It was right for the Tribunal not to have provided a copy of the letter to the appellant and not to have disclosed to the appellant any information that may have revealed the identity of its author. Before reaching its decision, however, the Tribunal should have told the appellant the substance of the allegations made in the letter.

8 Because the parties identified the critical question in the way they did — what did common law principles of procedural fairness require in this case? — much of the argument was directed to examining how judicial statements of general principle should be applied to the way in which the Tribunal had conducted its review of the refusal to grant the appellant a protection visa. Before embarking upon an examination of the application of general principles it is as well to identify the premises from which the parties' arguments about the application of those principles proceeded. In particular, it is necessary to begin from an explicit recognition of the fact that the Tribunal was exercising powers and performing functions specified by the Act.

Relevant provisions of the Act

9 Section 414(1) of the Act obliged the Tribunal to review the decision to refuse the appellant's application for a protection visa. Section 415(1) empowered the Tribunal, for the purposes of the review, to ‘exercise all the powers and discretions that are conferred by this Act on the person who made the decision’. Section 65(1) of the Act obliged the Minister to grant a visa if satisfied that the criteria for granting that visa had been satisfied. If the Tribunal was satisfied that the criteria for the visa were satisfied, the Tribunal was bound to set the delegate's decision aside and substitute a new decision granting the visa. Thus, the Tribunal was bound to set aside the delegate's decision and substitute a decision granting a visa if satisfied 4 that the appellant was a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol 5. Conversely, if not satisfied that the appellant was a person to whom Australia had protection obligations, the Tribunal was bound to affirm the delegate's decision.

10 The statutory specification of the Tribunal's duty and power to conduct the review was to be read as conditioned upon the Tribunal's observance of the requirements of procedural fairness 6. The content to be given to that obligation

to accord procedural fairness must, of course, accommodate the particular provisions made in the Act which regulated how the Tribunal was to go about its task. Nonetheless, in the form the Act took at the times relevant to this matter 7, the particular provisions made in the Act to regulate the way in which the Tribunal went about conducting its review were not to be understood as an exhaustive statement of the steps that the Tribunal may have to take in any particular case in order to accord procedural fairness to the applicant for review.

11 Neither party contended that the Act prescribed the course that the Tribunal should have taken in the present matter. In particular, although the Act made provision, in s 424A, for an applicant for review to be given certain information and, by s 438, gave the Tribunal what the heading to that section described as a ‘discretion in relation to disclosure of certain information etc’, neither party contended in this Court that those provisions had been engaged or that the present matter was to be decided by the application of those provisions.

12 It is as well to explain why that was so. As for s 424A, it is enough to notice that that provision is directed to ‘information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review’. The Tribunal said, in its reasons, that it did not act on the letter or the information it contained. That is reason enough to conclude that s 424A was not engaged. A little more must be said about s 438.

13 Section 438 applied to a document given to the Minister, or an officer of the Department, in confidence. If in compliance with a requirement of or under the Act the Secretary gave to the Tribunal a document to which s 438 applied, the Secretary was bound, by s 438(2)(a), to notify the Tribunal that s 438 applied in relation to the document or information...