CZBH v Minister for Immigration

This matter concerned an application for judicial review brought by the Applicants against the Minister for Immigration. The dispute arose from a hearing before a Migration Review Tribunal (MRT) where the Applicants alleged a denial of procedural fairness. The Applicants contended that the Tribunal had failed to accord them procedural fairness in several respects, including refusing to take oral evidence from their fathers, refusing an adjournment to address interpreter issues, refusing proper representation by their solicitor, exhibiting bias, failing to understand the case, failing to consider relevant evidence, and making findings without evidence. The court was required to determine whether the MRT’s conduct during the hearing amounted to jurisdictional error, specifically concerning the alleged breaches of procedural fairness.

The court considered whether the Tribunal’s refusal to take oral evidence from the Applicants’ fathers, despite statements from them having been provided, constituted a failure to accord procedural fairness. The Applicants argued that the Tribunal had a duty to consider this oral evidence, even though section 426(3) of the Act did not mandate hearing it. The court also examined the Tribunal’s refusal to grant an adjournment to address concerns about the interpreter's accuracy and the alleged refusal to allow proper representation by the solicitor. The court noted that while there was no "bright line" for jurisdictional error, the overall perception of the process, including any accumulated interference, intolerance, or frustration, needed careful assessment. The court acknowledged the difficult task faced by the Tribunal in balancing an inquisitorial process with statutory requirements, particularly when dealing with non-English speakers and interpreter issues.

The court reasoned that a reasonable opportunity to be heard requires a decision-maker to provide a claimant with the chance to advance their factual material and submissions before reaching a conclusion. It emphasised the importance of reviewing the entire transcript of proceedings rather than isolated sentences. While acknowledging that the Applicants' complaints, individually or collectively, did not definitively fall foul of the requirement for an "apparently fair process," the court found the case to be borderline. It noted that the opportunity afforded to the Applicants to provide further written submissions after the hearing was an important step that could mitigate deficiencies in the process. Ultimately, the court concluded that, while arguable, the Applicants had not established that the Tribunal’s conduct amounted to a failure to provide an apparently fair process.