Minister for Immigration and Border Protection v WZARH

Case [2015] HCA 40


HIGH COURT OF AUSTRALIA

KIEFEL, BELL, GAGELER, KEANE AND GORDON JJ

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".

  1. 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 Act 1958 (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".

  2. 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).

    [3](2010) 243 CLR 319 at 343 [41]‑[44]; [2010] HCA 41.

  3. 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…

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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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL, BELL AND KEANE JJ GAGELER AND GORDON JJ

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Ratio Decidendi

Legal Principle Established

Established by: KIEFEL, BELL AND KEANE JJ, GAGELER AND GORDON JJ

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