Minister for Immigration and Border Protection v WZARH

• Jurisdiction: Australia Federal only
• Judge: Kiefel,Bell,Keane JJ.,Gageler,Gordon JJ.
• Judgment Date: 04 November 2015
• Neutral Citation: [2015] HCA 40
• Docket Number: S85/2015
• Court: High Court
• Date: 04 November 2015

[2015] HCA 40

HIGH COURT OF AUSTRALIA

Kiefel, Bell, Gageler, Keane and Gordon JJ

S85/2015

Minister for Immigration and Border Protection

Appellant

and

Wzarh & Anor

Respondents

Representation

G T Johnson SC with B D Kaplan for the appellant (instructed by Sparke Helmore Lawyers)

S E J Prince with P W Bodisco for the first respondent (instructed by Thomas McLoughlin Solicitor)

Submitting appearance for the second respondent

Minister for Immigration and Border Protection v WZARH

Administrative law — Procedural fairness — Refugee Status Assessment — Independent Merits Review (‘IMR’) — Where first reviewer conducted interview with first respondent but did not complete IMR — Where second reviewer completed IMR without interview but with regard to transcript and audio recording of first reviewer's interview — Where first respondent not informed of change in identity of reviewer — Where second reviewer formed adverse view of first respondent's credibility — Whether first respondent denied procedural fairness.

Words and phrases — ‘legitimate expectation’, ‘opportunity to be heard’, ‘oral hearing’, ‘procedural fairness’, ‘unfairness’.

ORDER

Appeal dismissed with costs.

1 Kiefel, Bell and Keane JJ. The respondent 1 is a national of Sri Lanka of Tamil ethnicity. On 7 November 2010, he entered Australia by boat arriving at Christmas Island. At that time, Christmas Island was an ‘excised offshore place’ and the respondent was an ‘offshore entry person’, as then defined in s 5(1) of the Migration Act 1958 (Cth) (‘the Act’). As the respondent did not hold a visa to enter Australia, he was an unlawful non-citizen as defined in s 14 of the Act, and so, upon his arrival at Christmas Island, he was taken into detention pursuant to s 189(3) of the Act.

2 Because the respondent was an offshore entry person, s 46A of the Act as it then stood prevented him from making a valid application for a Protection (Class XA) visa. On 21 January 2011, he requested a Refugee Status Assessment (‘RSA’) as to whether he was a person to whom Australia owed protection obligations under the Refugees Convention 2. This process was described in this Court's decision in Plaintiff M61/2010E v The Commonwealth3.

3 In response to the respondent's request, a delegate of the appellant, the Minister for Immigration and Border Protection (‘the Minister’), interviewed the respondent in respect of his claim to refugee status. The respondent claimed that he was owed protection as he feared harm at the hands of the Eelam People's Democratic Party and the Sri Lankan authorities because of his Tamil ethnicity, his perceived support of the Liberation Tigers of Tamil Eelam, and his having campaigned in Sri Lanka for a particular politician.

4 On 29 April 2011, the Minister's delegate made an adverse assessment of the respondent's claim to refugee status. On 20 May 2011, the respondent requested an Independent Merits Review (‘IMR’) of the RSA.

5 On 16 January 2012, the respondent was interviewed by an independent merits reviewer. It will be convenient, though strictly speaking inaccurate 4, to refer to this individual as the First Reviewer. At this interview, the First Reviewer told the respondent that she would ‘undertake a fresh re-hearing of [his] claims’ and ‘mak[e] a recommendation as to whether [he is] found to be a

refugee’, and that ‘this will be given to the Minister … for consideration.’ She concluded the interview by telling the respondent that she would consider ‘all the information that [he has] provided’ and ‘any further articles or information’, then ‘make [her] recommendation.’

6 For undisclosed reasons, the First Reviewer became unavailable to complete the IMR. At some point after 16 January 2012, and unbeknown to the respondent, another individual assumed responsibility for the completion of the IMR. This individual is the second respondent to this appeal. It will be convenient to refer to him as the Second Reviewer.

7 On 25 July 2012, the Second Reviewer found that the respondent did not meet the criteria for a Protection (Class XA) visa as set out in s 36(2) of the Act and, accordingly, recommended that the respondent not be recognised by the Minister as a person to whom Australia owed protection obligations. The Second Reviewer did not interview the respondent, but based his decision on a consideration of written materials, including the respondent's original applications, a transcript of his interview with the departmental officer on Christmas Island, the submissions made by his advisors on his behalf, country information, and a recording and transcript of his interview with the First Reviewer 5.

8 The Second Reviewer formed an adverse view of the credibility of the respondent. In particular, the Second Reviewer rejected what he described as ‘a central plank of [the respondent's] fear of persecution’, namely his association with the particular politician, on the basis of inconsistencies in his account of his activities in various election campaigns in Sri Lanka. Importantly, the Second Reviewer did not accept ‘that this kind of error was due to memory lapse or confusion, nor indeed to the effects of detention’. Having formed this strong adverse view of the respondent's credibility, the Second Reviewer proceeded to find that:

‘there is not a real chance that [the respondent] would be persecuted, now or in the reasonably foreseeable future for reasons of political opinion … ethnicity or membership of a particular social group … [and] that his fear of persecution for a Convention reason is not well-founded.’

9 On 20 September 2012, the respondent filed an application in the Federal Circuit Court for judicial review of the decision of the Second Reviewer. On

14 October 2013, the primary judge (Judge Raphael) dismissed the respondent's application 6. The respondent then appealed to the Full Court of the Federal Court of Australia. On 20 October 2014, the Full Court allowed the appeal and declared that the Second Reviewer arrived at his decision in breach of the rules of procedural fairness.

The reasons of the primary judge

10 Before the primary judge, the respondent argued that the Second Reviewer's failure to conduct an interview with him as part of the IMR meant that he was denied procedural fairness 7. In support of that argument, the respondent referred to the fact that because the Second Reviewer did not conduct an interview, the Second Reviewer did not sight certain scars that the respondent claimed were evidence of torture to which he had been subjected 8.

11 The Minister relied upon the general proposition, supported by the decision of the Full Federal Court in Chen v Minister for Immigration and Ethnic Affairs, that 9: ‘It is beyond argument that the rules of natural justice do not mandate in all cases an oral hearing for the person affected.’ The primary judge upheld the Minister's submission, holding that it was not procedurally unfair for the Second Reviewer to make his recommendation without conducting an interview with the respondent 10.

12 In this regard, the primary judge concluded that questions as to the respondent's credibility could properly be resolved against him by the Second

Reviewer by reference to the documents and audio evidence available to him 11. The primary judge said 12:

‘This is not a case that [sic] a matter is considered solely on the papers. There had been a hearing. The [Second Reviewer] had heard the tape of that hearing and read the transcript.’

13 The primary judge also rejected the respondent's submission that the IMR process lacked procedural fairness because the Second Reviewer had failed to take into account a relevant consideration, namely the scars on the respondent's arm 13.

The reasons of the Full Court

14 The respondent appealed to the Full Court on the basis that the primary judge erred in failing to hold that the respondent had been denied procedural fairness. The two grounds advanced in support of that contention were that the Second Reviewer did not conduct an interview with the respondent; and that visible scarring on the respondent's arm (a relevant consideration) was not taken into account by the Second Reviewer in making his decision.

15 The Full Court (Flick and Gleeson JJ in a joint judgment, Nicholas J in a separate concurring judgment) rejected the second ground, but upheld the first ground and allowed the appeal 14. The second ground has not been pursued further, and it is unnecessary to say any more about it.

16 Flick and Gleeson JJ accepted that there is no universal requirement for an oral hearing before an administrative decision is made 15. Their Honours said that 16:

‘Subject to any statutory provision to the contrary, any conclusion as to whether the rules of natural justice require an oral opportunity to be heard can perhaps be put no more specifically than by inquiring whether a fair opportunity to be heard requires such a hearing.’

17 Before pursuing that inquiry, however, their Honours observed that the respondent had a legitimate expectation that the person by whom he had been interviewed would be the person to make the recommendation to the Minister 17. Their Honours said that, although the notion of ‘legitimate expectation’ as the criterion for an entitlement to procedural fairness from an administrative decision-maker has been criticised, it remains a useful tool when considering ‘what must be done to give procedural fairness to a person whose interests might be affected by an exercise of power’ 18. In their Honours' view, the respondent had been put in a position where he believed that he would have an opportunity to make oral submissions to the decision-maker, and, without warning or opportunity to object, he was denied that opportunity 19.

18 Flick and Gleeson JJ noted that, in the present case, unlike in...