MINISTER FOR IMMIGRATION AND BORDER PROTECTION APPELLANT
AND
WZARH & ANOR RESPONDENTS
Minister for Immigration and Border Protection v WZARH
[2015] HCA 40
4 November 2015
S85/2015
ORDER
Appeal dismissed with costs.
On appeal from the Federal Court of Australia
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
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
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".
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 Act1958 (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.
[1]The second respondent has filed a submitting appearance. It is, therefore, convenient to refer to the first respondent to the appeal as "the respondent".
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 Commonwealth[3].
[2]The Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967).
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Minister for Immigration and Border Protection v WZARH [2015] HCA 40
Case
[2015] HCA 40
Decision Date
CaseChat Overview and Summary
The Minister for Immigration and Border Protection appealed to the High Court of Australia against a decision of the Full Federal Court concerning the procedural fairness afforded to the first respondent, WZARH, during a refugee status assessment. The dispute centred on the Independent Merits Review (IMR) process, where the first respondent was interviewed by one reviewer but the final decision was made by a second reviewer who had not personally conducted an interview.
The High Court was required to determine whether WZARH was denied procedural fairness. Specifically, the Court considered whether the failure to inform WZARH of the change in reviewer, and the second reviewer's reliance on the transcript and audio recording of the initial interview without conducting a fresh oral hearing, constituted a breach of the duty to provide procedural fairness. The Court also examined whether the second reviewer's adverse assessment of WZARH's credibility, based on the existing material, was permissible in the absence of a further interview.
The High Court held that procedural fairness required that WZARH be given an opportunity to be heard by the ultimate decision-maker, or at least be informed of the change in reviewer and given an opportunity to make further submissions. The Court reasoned that the second reviewer's adverse credibility findings, formed without a fresh interview and without WZARH being aware of the change in reviewer, meant that WZARH had not been afforded a proper opportunity to present their case to the decision-maker. The principles of procedural fairness, including the right to be heard and the legitimate expectation of a fair hearing, were engaged.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL, BELL AND KEANE JJ
GAGELER AND GORDON JJ
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL, BELL AND KEANE JJ,
GAGELER AND GORDON JJ