Dzaff v Minister for Immigration and Border Protection

[2015] FCA 569

FEDERAL COURT OF AUSTRALIA

DZAFF v Minister for Immigration and Border Protection [2015] FCA 569

Citation:	DZAFF v Minister for Immigration and Border Protection [2015] FCA 569
Appeal from:	DZAFF v Minister for Immigration [2015] FCCA 544
Parties:	DZAFF v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and WENDY BODDISON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER
File number:	NTD 4 of 2015
Judge:	MANSFIELD J
Date of judgment:	11 June 2015
Catchwords:	MIGRATION – appeal from Federal Circuit Court and Independent Merits Reviewer decision – whether notification of adverse information and invitation to comment given to agent was sufficient notification – procedural fairness – decision made in absence of response – in circumstances, notification insufficient
Legislation:	Migration Act 1958 (Cth)
Cases cited:	Plaintiff M61/2010E (2010) 243 CLR 319 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 SZFDE v Minister for Immigration and Multicultural Affairs (2007) 232 CLR 189, Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 Minister for Immigration and Multicultural and Indigenous Affairs v George (2004) 139 FCR 127 Osborne v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 416 Minister for Immigration and Multicultural and Indigenous Affairs v SZFNL (2006) 154 FCR 572 SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73 Guo v Minister for Immigration and Border Protection [2015] FCA 134
Date of hearing:	14 May 2015
Place:	Adelaide (heard in Darwin)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	40
Counsel for the Appellant:	J Burnside QC
Solicitor for the Appellant:	Ward Keller Lawyers
Counsel for the Respondents:	T Anderson
Solicitor for the Respondents:	Australian Government Solicitors

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 4 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

DZAFF
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

WENDY BODDISON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	11 JUNE 2015
WHERE MADE:	ADELAIDE (HEARD IN DARWIN)

THE COURT DECLARES THAT:

1.The recommendation of the Independent Merits Reviewer made on 23 August 2012 that the appellant does not meet the criteria for a Protection (Class XA) visa set out in s 36(2) of the Migration Act 1958 (Cth) and that the appellant not be recognised as a person to whom Australia has protection obligations was made by error of law, in that the Independent Merits Reviewer failed to accord the appellant with the opportunity to comment on adverse information which she regarded as credible, relevant and significant to the review.

THE COURT ORDERS THAT:

2.The appeal be allowed.

3.The first respondent pay to the appellant costs of the appeal in this Court and of the application in the Federal Circuit Court of Australia.

4.The orders of the Federal Circuit Court, including as to costs, of 13 March 2015 be set aside.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 4 of 2015

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

DZAFF
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

WENDY BODDISON IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent

JUDGE:	MANSFIELD J
DATE:	11 JUNE 2015
PLACE:	ADELAIDE (HEARD IN DARWIN)

REASONS FOR JUDGMENT

INTRODUCTION

1. This appeal is from a decision of the Federal Circuit Court of Australia (FCC) given on 13 March 2015. That Court dismissed an application for judicial review of the decision of an Independent Merits Reviewer (the Reviewer) of 23 August 2012 finding that the appellant does not meet the criteria for a Protection (Class XA) visa set out in s 36(2) of the Migration Act 1958 (Cth). Consequently, the Reviewer recommended that the appellant not be recognised as a person to whom Australia has protection obligations under the Act.

2. The sole ground on which the FCC is said to have erred, and the Reviewer similarly to have erred, concerns whether the Reviewer accorded the appellant procedural fairness in the course of the conduct of the Independent Merits Review (IMR).  It is a narrow point, and therefore it is not necessary to refer in great detail to the nature of the appellant’s claim to be entitled to the visa or to address in detail how it was considered firstly when the Refugee Status Assessment (RSA) was made by a delegate of the Minister on 1 December 2010, or by the Reviewer.  

3. The appellant is a citizen of Iran who arrived in Australia on 25 May 2010.  He requested the RSA, and subsequently the IMR.  That required consideration of whether he met the criteria for the visa.  His application for a favourable assessment was unsuccessful.  That decision was appealed to the FCC and the initial assessment by the IMR was set aside by a decision of the FCC on 17 February 2012.  His request for IMR was referred back and was heard by the Reviewer.  It is that decision which was the subject of the recent application to the FCC, and because the FCC dismissed that application, it is that decision of the Reviewer and the FCC decision which is the subject of the appeal to this Court.

4. I note that a detailed consideration of the documents relevant to the sole issue, as contained in the material before the Court and the FCC, was undertaken during the hearing of the appeal.  The Minister indicated there may be further relevant documents, and was given leave to adduce them.  These reasons for judgment take into account the Minister’s Amended Supplementary Submissions and the three additional documents to which they refer, and which are attached to that Submission.

   THE DECISION ON THE APPELLANT’S CLAIM

5. The appellant claimed that he is entitled to a protection visa, because he has a well-founded fear of persecution if he were to return to Iran.  He said that he had intercourse with a young woman before they were married, and had to flee because of a serious threat of retribution from the members of that young woman’s family.  He said that he could not return to Iran because the Iranian authorities would not protect him from that threat.

6. The Reviewer did not accept his claims.  That is reflected in [103] of her reasons in the following terms:

   When the reviewer examines the claimant evidence as a whole, including all the interviews the claimant has participated in, the reviewer is not satisfied that the claimant had sex with his girlfriend and that her family have found out and intend to harm him for having been responsible for his girlfriend losing her virginity.  Consequently, the reviewer is not satisfied that the authorities in Iran will harm the claimant (or would let others harm the claimant) or bring adultery (or rape) charges against him for having sex with his girlfriend.  The reviewer does not accept that the claimant faces a real chance of being charged with rape or adultery if he returned to Iran and his fear is not well-founded.  The reviewer is not satisfied that the claimant has breached Sharia law and therefore is not satisfied that he would be imputed with an anti-government political opinion as a result.  Equally the reviewer is not satisfied that he would be regarded as having offended against religion.  He would not be regarded as an infidel.  (Emphasis added.)

7. The significance of that paragraph, for present purposes, flows from the fact that the IMR perceived that the appellant had provided in some respects inconsistent evidence or information in interviews, including an interview with the Reviewer, about which it was appropriate to seek the appellant’s specific comments.  Those apparent inconsistencies, it is said by senior counsel on his behalf, may have been explained by reference to the use of different interpreters at his various interviews and the way in which words in Iranian were interpreted into English by different interpreters.  It was said that they might turn on matters of linguistic subtlety rather than contradictions, and that if the appellant had had the opportunity to explain that (perhaps supported by one interpreter having listened to and translated all of the records of interview), the inconsistencies would not be so apparent.  Counsel for the Minister did not make any submission to controvert those assertions.  A particular illustration was given of a use of a colloquial English word in the transcript of the interview by the Reviewer which, it was fairly said, would not be likely to be a literal translation of what the appellant had said.  Because the Reviewer’s comments and conclusions are based upon the whole of the evidence, the fact that the appellant did not in fact comment upon those apparent inconsistencies is potentially significant.  The reference in [103] of the IMR decision to the “whole of the evidence” suggests that the Reviewer, being aware of the inconsistencies, and having given the appellant the opportunity to explain them, and the appellant not having explained them, assumed that they were inconsistencies and therefore played a role in the conclusion which the IMR reached.

8. That is, in my view, a reasonable analysis of the Reviewer’s reasoning, and would be unexceptionable, provided it was legitimate to assume that the appellant had had the opportunity to explain the inconsistencies and had chosen not to do so.

   THE OPPORTUNITY TO BE HEARD

9. It is accepted following the decision of Plaintiff M61/2010E (2010) 243 CLR 319, that the regime under which the IMR was conducted required the Reviewer to accord procedural fairness to the appellant.

10. That is reflected in the Guidelines made available to persons conducting an IMR, relevantly in para 4.1 which indicates firstly that the IMR is expected to act in accordance with the principles of procedural fairness in order to determine the merits of the case, and by way of a particular that the Reviewer will provide the claimant with an opportunity to comment on adverse information which is credible, relevant and significant to the review.  Paragraph 7.1 of the Guidelines says that adverse information should be put to the claimant in writing or orally at the interview.  Additionally, paragraphs 7.2.1 and 7.3 provide:

    7.2.1In the event that the claimant or their agent do not respond within the timeframe set by the Independent Reviewer and no alternative timeframe has been agreed to by the Independent Reviewer, the Independent Reviewer should notify the claimant and their agent that he/she will continue with the review and a finding may be made without giving the claimant an opportunity to provide any further comment or information.

    ...

    7.3Any communication with a claimant’s agent should be treated as having been with the claimant themselves.

11. There is no dispute further that it was both necessary and proper that the IMR should, as she did, as part of the process of according procedural fairness to the appellant, have notified him of what she perceived as inconsistencies in various statements or sets of information he had provided over time, and should give him a reasonable opportunity to comment upon them.

12. It is necessary to identify what was done to meet that requirement.

13. By email letter of 31 July 2012, under the heading “Invitation to comment on or respond to information” a letter was written at the direction of the Reviewer which contained the following:

    [The appellant] is invited to comment or respond to certain information which the reviewer considers would, subject to any comments or response, be the reason, or part of the reason, for making a negative recommendation in this review.

    ...

    This information is relevant to the case under consideration because the inconsistencies in his account might suggest that [the appellant] is not telling the truth about having sex with his girlfriend.  It would seem to the reviewer that being alone with his girlfriend at a private home in Iranian society would be an activity that offended against Iranian society’s values and would be regarded as a big step.

    [The appellant] is invited to give comments on or respond to the above information in writing.

    These comments or responses should be received at the Independent Protections Assessment Office via email to [email protected] by Tuesday, 14 August 2012.  If the comments or response are in a language other than English, please provide an English translation from an accredited translator.

    If you cannot provide your written comments or response by Tuesday, 14 August 2012, you may ask the Assessor for an extension of time.  The Assessor will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

    If the Assessor does not receive the information within the time period above or as extended, they may make a decision on the review without taking any further action to obtain the information.

14. The reference at the top of the letter and the introductory paragraph referred to the IMR of the appellant’s claim for the visa.

15. The email letter was addressed in the following way:

    Vrachnas Lawyers
    john@vraclaw

    Dear Vrachnas Lawyers

    It was signed by a Case Support Officer to the IMR.

16. It is clear that the appellant did not respond.  It appears that he did not respond because he did not receive a copy of that letter.  Nor was he notified of its contents by Vrachnas Lawyers.  The evidence indicates that a copy of the letter is now on the file of Vrachnas Lawyers, and it also indicates that the letter was not “actioned” by Vrachnas Lawyers (if it was received at about the time it was sent).

17. The Reviewer then by internal email on 16 August 2012 noted to her support staff that the appellant was supposed to have responded to that letter by 14 August 2012, and asked whether a response had been received.  She was informed that no response had been received from Vrachnas Lawyers, and that an attempt had been made on 17 August 2012 to contact Vrachnas Lawyers, but no message could be sent or left.  The Reviewer’s officer was asked to follow-up one more time with Vrachnas Lawyers.  On 20 August 2012, an officer of the IMR apparently spoke by telephone to someone at Vrachnas Lawyers (an unidentified person) and the Reviewer was then told by email from the IMR officer that that person “promised to get back to us with an answer to the below request before COB today”.  The Reviewer on 22 August 2012 by internal email asked whether a response had been received.  There is no record of her having received any response to that or other internal advice from any IMR officer prior to her decision being given on 23 August 2012.  Subsequently, on 28 August 2012, an IMR internal officer by email responded to the Reviewer that there had been nothing to indicate any response from “Vrachnas” on behalf of the appellant.

18. There are some additional documents to note before addressing the issue of whether, in those circumstances, the appellant was afforded procedural fairness.

19. The appellant’s request for the IMR was made on 20 December 2010.  It remained active as the relevant request, subsequent to the initial IMR being set aside by the FCC.  The relevant request includes the section entitled “Section C – Do you wish to appoint an agent for you in relation to this request?” with a “Yes” answer signified.  The agent’s name is given as Roslyn Smidt of Vrachnas Lawyers.  A business address is provided.  The following section is headed “Section D – Options for receiving Correspondence”.  It contains the following text:

    All correspondence will be sent to you.  You may choose to appoint another person, who may be your authorised agent, to receive correspondence on your behalf in connection with the independent merits review.  If you do appoint an agent, unless you specify otherwise, all documentation will be sent to your agent and you will receive a copy of that correspondence.

    If you have an adviser and you do not appoint your adviser to be your agent or recipient, your adviser will not receive any correspondence from the Independent Reviewer.

    If you do not appoint an agent or recipient, all correspondence regarding your request for independent merits review will only be sent to you.

    The box which is crossed is then the Box which says:

    To my authorised agent

    (if you mark this box, all correspondence will be sent to your agent as given in Section C and to you.)

    Also in Section D, following text dealing with the other choices (not presently relevant) is a subheading “Consent to communicate electronically” with the following text:

    As the authorised agent or recipient named on this form to receive correspondence, do you agree to the Independent Reviewer communicating with you by fax, e-mail or other electronic means?

    The box with a positive answer is marked, and the details are given as follows:

    Fax:     [phone]               E-mail: John Vrachnas <[email protected]>

    It is signed by the agent Roslyn Smidt.

20. At the hearing before the IMR, the transcript indicates that the appellant was represented by an agent other than Ms Smidt, namely Mr Benjamin.  There is no documentary material to record that he has been substituted for Ms Smidt as the agent, or any document suggesting he authorised communications to be made in any different way.  The evidence received for the hearing of the application to the FCC indicates that Vrachnas Lawyers engaged particular migration agents such as Ms Smidt or Mr Benjamin on an ad hoc basis to represent particular visa applicants, rather than that they were permanent members of the staff of that firm.  It also indicates that there is no note on the Vrachnas Lawyers file of the telephone communication of 20 August 2012 referred to above.

21. The additional documents produced by the Minister on this appeal, as well as the material before the FCC, following the first FCC decision declaring error of law on the part of the IMR in relation to its earlier review, indicates:

    (1)by letter of 20 April 2012 from the Independent Protection Assessment Office addressed to the appellant, and to Vrachnas Lawyers: [email protected], the appellant was notified of the interview on 9 May 2012 (the interview conducted by the Reviewer).  On the same date an email was sent to Vrachnas Lawyers by the Independent Protection Assessment Office, addressed to [email protected] and copied to “[email protected]” enclosing the letter to the appellant.  It added:

    If you could please forward this letter to your client that would be appreciated as it will assist in ensuring their attendance at the review on the designated date and time.

    We have included the client’s address as indicated by our records.  Please cross reference your contact details in case of any changes to address since this time.

    (2)by email of 2 July 2012, from John Vrachnas, to the “Review Team”, a request was made for a prompt determination by the Reviewer, and by return email of the same day to “[email protected]” he was told he would be notified promptly when the recommendation of the Reviewer was available;

    (3)by email of 31 July 2012 and addressed to “[email protected]” and copied to “[email protected]”, attached the letter of 31 July 2012 referred to above at [13], pointing out the date for the response.

    CONSIDERATION

1. In a cascading series of propositions, it is said on behalf of the appellant that the Reviewer did not accord the appellant procedural fairness because:

   (1)it was necessary for the Reviewer to be satisfied that the appellant personally had had the opportunity to respond and so personally came to know of the contents of the letter of 31 July 2012;

   (2)it was necessary for the Reviewer to have sent the letter to the lawyers, and in the circumstances also to have sent it to the appellant (as was indicated on the form constituting the application for IMR);

   (3)in the absence of any response from Vrachnas Lawyers by 14 August 2012, it was necessary for the Reviewer to have taken steps to ensure that the contents of the letter had been brought to the attention of the appellant so that he had made, or appeared to have made by communications provided from his agent and/or Vrachnas Lawyers, a conscious decision not to respond to the letter;

   (4)it was necessary for the Reviewer to have addressed the letter to either Ms Smidt at Vrachnas Lawyers, or to Mr Benjamin at Vrachnas Lawyers, to have ensured that a reasonable opportunity was provided to the appellant to respond to it;

   (5)in any event, as the letter was not sent either to the agent, or to Vrachnas Lawyers at the address given because the email address was incomplete, the necessary opportunity to be heard had not been given; and

   (6)further, in any event, having regard to the communications with Vrachnas Lawyers, did not amount to a reasonable opportunity to respond in the circumstances simply to speak to an unidentified person at Vrachnas Lawyers in the terms in which apparently occurred on 20 August 2012, without further following up the telephone call.

2. The Minister’s position is that the appellant’s agent was John Vrachnas (rather than Ms Smidt or Mr Benjamin), that the letter of 31 July 2012 was sent to Mr Vrachnas by the email referred to at [21] above, at the correct email address (despite the letter itself having an incomplete email address), and that in the circumstances the appellant was given a reasonable opportunity to be heard through Mr Vrachnas. The case is one where the only unfairness is purely the fault of the appellant’s legal advisors: see Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572 at [73] (SZFML).

3. There are other decisions which support the proposition that mere negligence, inadvertence or incompetence on the part of a migration agent, so that a visa applicant does not in fact have a personal opportunity to make a submission or response to apparently adverse information, does not of itself demonstrate a failure by the decision-maker to accord procedural fairness: SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73 at [52] per Perram, Robertson and Griffiths JJ (SZSXT); Guo v Minister for Immigration and Border Protection [2015] FCA 134 at [23] per Siopis J; and Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at [128]-[129] per French J (SZFDE).  The last mentioned case was affirmed on appeal to the High Court: SZFDE v Minister for Immigration and Multicultural Affairs (2007) 232 CLR 189 at [53] where the remarks of French J in SZFDE were specifically approved.

4. The decision in SZFDE concerned a decision-making process affected by material dishonesty on the part of the relevant decision-maker, so the observations of French J and the decision of the High Court were not based on the particular issue now under consideration.

5. Nevertheless, it is important to note a critical distinction which the appellant says can be drawn from the remarks of French J in SZFDE, between a visa applicant acting on poor advice of a lawyer or migration agent on the one hand, and (as here) a visa applicant who is simply not aware of the opportunity afforded to be heard.  That is said to be based on the words of French J at [103] specifically referring to the visa applicant having relied upon the advice of the migration agent, and at [127] where he said:

   Nor was there anything in the conduct of the Minister or the Department in relation to the review that could be said to have infected it with procedural unfairness.  And, although procedural unfairness may, as the authorities discussed earlier demonstrate, occur without fault on the part of the decision-maker, an applicant for review who acts upon bad advice not to attend a Tribunal hearing does not thereby render the Tribunal’s subsequent decision-making unfair.

   The High Court unanimously approved those remarks, adding “or some other mishap” to the reference to bad or negligent advice.

6. The distinction sought to be drawn was not specifically remarked upon in SZSXT, in the use of the potentially wider expression of conduct of a migration agent despite which the requirements of procedural fairness may be said to be satisfied.

7. I do not need to address each of the cascading propositions referred to at [22] above.

8. It is clear that the obligation to accord procedural fairness may not be provided, even though the particular decision-maker believed, and reasonably believed, that it had been provided.  Such was the case in Minister for Immigration and Multicultural and Indigenous Affairs v George (2004) 139 FCR 127 (George), where the notice of the opportunity to be heard had been mis-addressed at an administrative level.

9. In my view, the material does not satisfy the requirement that reasonable steps were taken to notify the applicant of the opportunity to respond to the potentially adverse information: cf Osborne v Minister for Immigration and Indigenous and Multicultural Affairs (2002) 124 FCR 416 at [20] per French J.

10. That view is reached upon the following bases, either cumulatively or on one or more of them:

    (1)the IMR had told the appellant that he would be notified directly of communications concerning his visa application, and he was not; and

    (2)the Reviewer had asked for a check to be made to Vrachnas Lawyers as to whether a response to the letter of 31 July 2012 was to be forthcoming, but apart from the one telephone contact which was not apparently noted either by the IMR officer (other than by the internal email to the Reviewer of 20 August 2012 that the lawyers would get back to the IMR that day) or by the lawyers.

11. The first needs no explanation.  The appellant was told that in his application for IMR.  He was given direct notice of the hearing by letter of 20 April 2012, and he attended the hearing.  He was entitled to expect to be sent the letter of 31 July 2012.

12. The second requires further explanation.  Clause 7.2.1 of the Guidelines (set out above) is obviously a sensible step, perhaps the more so if it gave a further short period by which any response would be considered.  It was not complied with, as the information about the telephone conversation of 20 August 2012 does not indicate that it was other than a very brief communication.  The IMR officer did not apparently ask to speak to, and did not apparently speak to, anyone with the conduct of the visa application of the appellant on 20 August 2012.  In particular, it is not suggested that the IMR officer asked to speak to, or spoke to, Mr Vrachnas or to Ms Smidt or to Mr Benjamin.  I infer further from the absence of any file note on the file (the content of which was established by affidavit before the FCC) about that conversation (as well as the lack of any detail in the IMR officer’s email to the Reviewer) that it was a brief conversation with someone not directly responsible for the file.  It is not suggested that whoever answered the telephone call was told – in terms of cl 7.2.1 of the Guidelines – that within a specified or short period, in the absence of a response, the Reviewer may proceed to a decision without giving any further opportunity to be heard.  In addition, the terms of what was said by an employee of Vrachnas Lawyers on that occasion provided no basis for thinking that a decision had been made not to respond to the opportunity offered by the letter of 31 July 2012, and so far as is apparent it was not conveyed that a formal detailed response would be delivered by the end of that day rather than that someone would (presumably) look at the file to ascertain whether the letter had been sent to the appellant (it had not) and what steps should be taken to procure his instructions; the proposal to “get back to” the IMR officer might have been to say that (as was the case) the appellant’s instructions had not been sought and to request more time to do so.

13. The Reviewer then, having asked on 22 August 2012, whether a response had been received but before getting a reply from any IMR officer, proceeded to make a decision the following day.

14. Accordingly, I consider that the FCC fell into error.  The issue as to sending the letter of 31 July 2012 to the appellant was not addressed.  The issue as to compliance with the Guidelines is one upon which, with respect, I disagree with the FCC reasons at [87] for the reasons given.  To the extent that the Guidelines in cl 7.3 provide that communication with a migration agent is to be treated as communication with the visa applicant, that is in the particular circumstances too prescriptive a proposition.  In the particular circumstances, in my view, the IMR process exposed the real risk that the appellant had not been apprised of the content of the letter of 31 July 2012, and so it was not appropriate to proceed (as the Reviewer did) on the basis that he had been given a reasonable opportunity to respond to the matters of concern expressed in that letter.

15. It is then necessary to make some observations about a few other matters. I have proceeded on the basis that communications with Mr Vrachnas by email: [email protected] are communications with the designated agent of the appellant, even though strictly speaking the designated agent was Ms Smidt. I have also proceeded on the basis that the letter of 31 July 2012 was sent to Mr Vrachnas by email on that day (as the email of that date suggests) even though the letter itself was mis-addressed by omitting “.com”. There is an alternative explanation for that letter being on the file of Vrachnas Lawyers when the file was inspected on 4 February 2015, namely that it was put there as a result of investigations or inquiries undertaken for the purposes of the FCC application. Finally, the various matters referred to in the preceding paragraph of these reasons have not been individually “weighted” and it should not be taken that each of them is a necessary element to the conclusion I reached about the second step referred to in [33].

16. In deference to the careful submissions of counsel both for the appellant and the Minister, I should note that the decision is a decision on the particular facts, and applying the principles as discussed for instance in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. In that case the visa applicant was unaware of the opportunity afforded to him to respond to particular adverse information by reason of an administrative slip. See in particular per Gleeson CJ at [14] and per Gaudron and Gummow JJ at [43]. See also NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at [12] and Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]. The case, therefore, is not in the simple category of those cases where an applicant for review of a decision concerning a visa application fails to respond to an opportunity of which the legal advisers are aware but do not notify the applicant, or where the legal advisers give bad advice not to respond or attend to a hearing: such as SZFDE.  French J in that case at [101] made the point that each set of circumstances has to be looked at individually when his Honour said at [101]:

    What emerges from the authorities referred to above is that procedural unfairness, not attributable to a decision-maker, may arise in connection with the making of a decision when a person’s exercise of the right to be heard before the decision is made, is compromised or lost through no fault of that person.  That circumstance does not however establish a sufficient condition for a finding of procedural unfairness.  Whether the decision is vitiated will depend upon the legal framework within which it was made, including any relevant statutory scheme, the content and effect of the decision, the extent to which the right to be heard has been affected or lost and the circumstances in which it has come to be affected or lost.

    George at [54] also acknowledges that there will be a spectrum of cases where the knowledge of the decision-maker and the conduct of the adversely affected party may indicate whether there has been a lack of procedural fairness.

17. For the reasons I have given, in my view, procedural unfairness was established in this case.  In fairness to the FCC, it should be pointed out that the refined argument ultimately presented on the hearing of this appeal was a little different from that which was presented to the FCC.  Nevertheless, it is based upon material which was included in the material before the FCC (subject to the additional material which the Minister was given the opportunity to adduce to complete that picture).  I do not need to decide this case other than on the application of settled principle to the particular circumstances. 

18. There will be a declaration that in finding that the appellant was not a person to whom Australia had protection obligations, the IMR made an error of law in that the appellant was denied procedural fairness.

19. The appeal should be allowed.  The orders of the FCC are set aside including the orders as to costs. The Minister should pay to the appellant costs of the appeal in this Court and in the FCC.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: 

Dated:        11 June 2015