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29 Mar 2012

Administrative decision-making, confidential information, and procedural fairness

by Avinesh Chand, Barry Dunphy

When making a decision that affects a person's rights or interests, adverse information, even if it is of a confidential or personal nature, may need to be provided to the person affected by the decision.

A recent judgment of the Federal Court reminds administrative decision-makers that where their exercise of power is likely to adversely affect the interests of another person, the decision-maker may have to give that person an opportunity to comment on adverse information that the decision-maker proposes to rely on in making his/her decision, even if the information was provided by a third party on a confidential basis.

In Minister for Immigration and Citizenship v Maman [2012] FCAFC 13, the Full Federal Court found that the decision of the Migration Review Tribunal was affected by jurisdictional error because Mr Maman had not been afforded procedural fairness by being given the opportunity to consider and comment on a confidential letter that his former partner had provided to the Department about their relationship.

The application and the first decision

As a result of the breakdown of his relationship with his Australian citizen partner, Mr Maman sought to rely on provisions in the Migration Regulations 1994 that required the Minister's delegate to be satisfied that Mr Maman had suffered family violence before granting Mr Maman a permanent visa to remain in Australia.

The Regulations required the Minister's delegate to seek the opinion of an independent expert, in this case a Centrelink social worker, on whether Mr Maman had suffered family violence. They also required the Minister's delegate to take the independent expert's opinion as correct.

The Centrelink social worker considered Mr Maman had not suffered relevant family violence, and his visa application was refused.

The Migration Review Tribunal decision

Mr Maman sought review of the decision by the Migration Review Tribunal, which decided to obtain a further opinion from a second independent expert.

The second expert came to the same conclusion as the first. The Tribunalprovided a copy of the second expert's opinion to Mr Maman for comment and, having received it, proceeded to affirm the decision to refuse his visa application.

Mr Maman then sought judicial review of the Tribunal's visa refusal decision by the Federal Magistrates Court.

Federal Magistrates Court finds that independent expert breached rules of procedural fairness

In her report, the second expert noted that she had "relied upon all information referred from MRT to Centrelink… outlined in section B16 of this report". A précis of a letter that Mr Maman's former partner had written to the Department on the breakdown of their relationship was included in that section of the report.

Mr Maman argued that the second expert had not provided the letter to him for comment before finalising her opinion.

Federal Magistrate Raphael found that the second expert was bound by the common law principles of procedural fairness and that the second expert had failed to provide Mr Maman with procedural fairness by not drawing the letter to his attention and inviting him to comment upon it.

The Federal Magistrates Court quashed the MRT's decision and directed it to reconsider Mr Maman's application.

The Minister appealed to the Federal Court.

Federal Court – confidentiality may not be an excuse for not complying with procedural fairness

One ground of appeal was that the Federal Magistrate's Court had erred by not considering that the content of the obligation to afford procedural fairness may be reduced to nothing where the impugned information has been given to the repository of power in confidence, or where the repository of power would breach privacy obligations if it disclosed the information.

In their joint judgment, Justices Flick and Foster reviewed the general principles of procedural fairness applying to the issues in this matter which include:

  • procedural fairness generally requires that a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his/her interests which is credible, relevant and significant to the decision to be made and which is in the possession of the decision-maker;
  • there are limitations on the duty to disclose information, for example, where questions of national security collide with the principles of procedural fairness, or where the information otherwise required to be disclosed is confidential;
  • the mere fact that a document may contain confidential information does not dictate that it not be disclosed, either in whole or in part. Even where there may be substantial reasons in favour of preserving the confidentiality of information, the rules of procedural fairness may require disclosure of adverse information;
  • procedural fairness may not require a decision-maker to disclose the precise details of all matters upon which he/she relies as it may be sufficient that the gravamen or substance of the issue or factor is brought to the applicant's attention or that the applicant is on notice of its "essential features";
  • where the confidentiality arises by reason of a personal relationship between two persons, the very fact of the relationship may dictate the disclosure of information which is otherwise properly characterised as truly "personal" or "confidential". Information which is intensely "personal" may have to be disclosed to the person concerned if the person is to be able to properly and adequately respond to the complaints or allegations of another;
  • the more personal the information that is communicated to a decision-maker by one party, the more necessary it may be to disclose the entirety of the communication – communication of the gist of the information, when stripped of the context or the manner or the terms in which the purely personal information is communicated may deny the affected person a proper opportunity to respond; and
  • if information is "credible, relevant and significant", a decision-maker's assertion that he has placed such information to one side or given it no weight may not comply with the requirement of procedural fairness.

Justices Flick and Foster accepted that the information in the letter was not information which could properly be characterised as either irrelevant or insignificant to the opinion that the second expert was required to reach. They also accepted that the letter, at least when it was written, attracted an obligation to keep it confidential when its terms and purpose was considered.

Justices Flick and Foster found that the common law rules of procedural fairness required that at least the gist, and more probably the entirety, of the letter should have been disclosed to Mr Maman before the second expert formed her opinion. The consequence of this breach of the rules of procedural fairness was that the second expert's "opinion" was not an opinion made under the Regulations, thus the Tribunal's decision, which relied on the second expert's "opinion", was vitiated by jurisdictional error.

Justice Katzmann indicated in her separate judgment that she generally agreed with Justices Flick and Foster's reasons with two qualifications, one of which is relevant to the procedural fairness issue. Justice Katzmann stated that she would not be as emphatic about the duty to disclose "purely personal" information. This leaves open whether the duty arises where disclosure would pose an imminent threat to the safety of a source of information.

In a nutshell, what does this case tell us?

The Federal Court's decision highlights the importance that courts place on affected persons being able to consider and respond to adverse material that is before an administrative decision-maker.

The Court's overview of the general principles of procedural fairness as they relate to confidential or personal information serves as a good reminder to administrative decision-makers that in making a decision that affects a person's rights or interests, adverse information, even if it is of a confidential or personal nature, may need to be provided to the person affected by the decision for comment in order to ensure that the decision that will be made is procedurally fair.


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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.