12 Apr 2010

The High Court retreats from a rigid application of statutory procedural fairness provisions

by John Carroll

In 2009, the High Court demonstrated a retreat from an overly rigid application of statutory procedural fairness provisions. More subtle considerations of the legislative scheme and context will be needed when considering the application of these provisions. There is more scope under this modified approach for producing workable and sensible outcomes.

In 2009, the High Court considered a range of appeals from the Federal Court on the application of statutory procedural fairness provisions in the Migration Act 1958 (Cth). Over the last few years, the High Court has emphasised the rigidity and inflexibility of statutory procedural fairness provisions when compared with common law requirements, and has interpreted and applied those provisions strictly. For example, in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294, the High Court held that any breach of the obligation in section424A of the Migration Act, which requires certain information to be given by a decision-maker to an applicant in writing, would constitute a breach of an inviolable requirement and, thus, result in a jurisdictional error. Emphasising the inflexibility of the statutory requirements in contrast to the common law counterparts, Justice Gummow said "what might be called the 'common law' requirements of procedural fairness in a given case do not have the rigidity of the statutory imperatives of [the statutory disclosure provisions]".

The Federal Court has largely taken the hint and has sought to adopt the same approach. In 2009, however, the High Court demonstrated a retreat from an overly strict view of these provisions, instead opting for workable and sensible results. This article will consider three cases in which the High Court has rejected the narrower approach of the Federal Court, instead favouring a more relaxed interpretation and application of the Migration Act provisions.

Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627

In SZIZO, the appellants - husband, wife and four children - had been refused protection visas. When applying for review to the Refugee Review Tribunal, the husband nominated his eldest daughter - who was one of the applicants - to be his authorised recipient. Subsection441G provides that "the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant". However, despite the requirement in that provision, the Tribunal corresponded only with the applicant father about the hearing. The husband, wife and four children appeared before the Tribunal and the husband, wife and eldest daughter (who was also the authorised recipient) gave evidence.

The Full Court held that the breach of the requirement in section 441G constituted a jurisdictional error leading to invalidity. The Court considered that the provisions in the Migration Act purporting exhaustively to set out the procedural fairness rules suggested "that Parliament intended that there be strict adherence to each of the procedural steps leading up to the hearing". This result was reached despite the fact that there had been no unfairness or prejudice to the appellants and there would not have been a contravention common law procedural fairness requirements. As in SAAP, there was a breach here of a statutory requirement and that breach resulted in invalidity.

The High Court rejected that conclusion. SAAP, it was said, was decided before the introduction of section 422B into the Migration Act, the provision making the Act an exclusive statement of the requirements of the natural justice hearing rule. The scope of section 424A would now have to be interpreted in light of section 422B.

The Court then drew a distinction between, on the one hand, core procedural fairness provisions and, on the other hand, provisions which are merely facilitative of a fair hearing. Section441G fell into the second category: it is a procedural step that goes to the "manner" of giving notice. By contrast, section 424A(1) sets out the obligation to give particulars of adverse information and section 425 sets out the obligation to invite the applicant to give evidence and present arguments. These are both core procedural fairness provisions.

For the Court, as far as section 441G was concerned, while compliance with the statutory requirements might have been intended by Parliament to discharge the Tribunal's obligations, a failure to comply need not result in invalidity. Instead, a determination of invalidity requires a consideration of the "extent and consequences of the departure". The consequences here were not sufficient to give rise to invalidity: there was no injustice - the applicants received timely and effective notice of the hearing.

Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489

In SZKTI, the appellant had been refused a protection visa. During the course of review by the Refugee Review Tribunal, the appellant had provided the Tribunal with a letter from a local church elder with the mobile telephone number of one of the elders. The Tribunal telephoned the elder and questioned him about the appellant. The information provided during the telephone conversation formed part of the reason for the rejection of the appellant's claim for a protection visa.

Section424(1) of the Migration Act 1958 (Cth) says that "[i]n conducting the review, the Tribunal may get any information that it considers relevant". Section424(2) says that "[w]ithout limiting subsection(1), the Tribunal may invite a person to give additional information". Section424(3) then says, essentially, that invitations under subsection(2) are to be in writing. The question for the Court was whether there was a breach of the requirement in section 424(3).

The Full Federal Court held that the Tribunal's telephone call to the elder of the local church constituted an invitation to him to give additional information. As such, the Tribunal was required to comply with the requirement in section 424(3), and failure to do so resulted in jurisdictional error.

The High Court on appeal disagreed with the Full Federal Court. The language of section 424(1) was broad enough, the Court thought, to allow the Tribunal to obtain information from a person by telephone. The inclusion of the words "[w]ithout limiting subsection(1)", that appear in section 424(2), meant that the restrictions on the power in section 424(2) were not to apply to the general power in section 424(1). That conclusion was "consonant with the inquisitorial nature of the RRT and the statutory obligation upon it to adopt procedures which are not only "fair [and] just" but are also 'economical, informal and quick'".

In reaching the contrary conclusion, the Full Federal Court had made much of the point that section 424 was a procedural fairness provision and should be read strictly to protect the applicant's interests. The High Court, however, said that procedural fairness was built into the system by requiring the Tribunal to give the applicant an opportunity to comment (section424A), not by requiring the getting of information under section 424(1) to be in writing. Thus, there was no breach of the statutory requirements and no jurisdictional error that would attract relief.

The same construction of section 424 was applied in Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 where a Full Federal Court had held that there was a breach of section 424 because an employee of the Tribunal had made inquiries by telephone without a written invitation. On the High Court's construction, no such breach resulted.

Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448

In Kumar, the High Court considered the obligation of the Minister's delegate to disclose the details of an informant who had provided information adverse to a visa applicant. Similar issues had been considered by the High Court in VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, when dealing with the requirements at common law to disclose informant information. In Kumar, the question was what was required of the decision-maker under the statutory disclosure requirements.

Mr Kumar, a non-citizen, married an Australian citizen in Australia. Shortly thereafter, he applied for a Partner (Residence) (Class BS) visa and a Partner (Temporary) (Class UK) visa. Eligibility for each visa under the Migration Regulations 1994 relevantly turned on the applicant demonstrating that he was in a "married relationship" with his spouse. The Minister's delegate was not satisfied that the parties had a mutual commitment to a shared life or that the relationship between them was genuine and ongoing, and refused to grant the visas. During the Tribunal review proceedings, Mr Kumar was informed in writing that the Tribunal had received confidential information stating that his marriage was a sham. In upholding the delegate's decision, the Tribunal indicated that it relied on the confidential information.

Section359A of the Migration Act requires the Tribunal to explain and invite comment on "particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". The requirement does not apply to, amongst other things, information that is "non-disclosable information", and "non-disclosable" information includes information or matter "whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence".

In deciding that there had been a breach of section 359A, the Full Federal Court considered that the information was not "non-disclosable". In reaching that conclusion, the Full Court was influenced by the position at general law that confidences are not protected in relation to the commission of crimes and fraud. Thus, to the extent that the information provided to the Tribunal revealed criminal or fraudulent activity, it would not be protected at general law by the doctrines protecting confidential information and, consequently, could not fall within the exclusion in section 359A from the general obligation of disclosure.

In allowing the appeal, the High Court cautioned against "the immediate translation into public law of such private law concepts". Provisions like section 359A in the Migration Act were, the Court said, designed to accommodate the competing objectives of affording applicants procedural fairness and providing protection for informants who assist decision-makers to make decisions under the Act. The Court referred to the decision in VEAL of 2002 as pointing to how the competing interests underlying section 359A should be accommodated. In VEAL, the Court held that common law requirements of procedural fairness did not require the Tribunal to give an applicant a copy of an informant's letter or provide the informant's name. The disclosure of that information would "give no significance to the public interest in the proper administration of the Act". Common law procedural fairness only required the Tribunal to tell the applicant "what was the substance of the allegations made in the letter and asking him to respond to those allegations".

With that in mind, the Court in Kumar considered that the fact that the informant may have provided information revealing the commission of offences "did not deny to the information and the identity of the informer the character of non-disclosable information within the meaning of" the provision. In conclusion, the Court said, the disclosure to Mr Kumar that the Tribunal had received information, in confidence, that his marriage was contrived for the purposes of migrating to Australia did not result in a breach of section 359A of the Act.

What do these cases tell us?

While the High Court had previously suggested a strict approach to the interpretation and application of statutory procedural fairness provisions, it seems that we are no longer to uncritically assume that these provisions are to be read narrowly to favour the individual concerned just because they are procedural fairness provisions. Procedural fairness may be built into the legislative scheme in different ways. The provisions might reflect accommodations between competing objectives. More subtle considerations of the legislative scheme and context will be needed, not just wholesale assumptions about rigidity, inflexibility and strictness of interpretation. As the cases demonstrate, there is more scope under this modified approach for producing workable and sensible outcomes.

Related Knowledge

Get in Touch

Get in touch information is loading


Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.