Minister for Immigration and Border Protection v WZARH & Anor
[2015] HCATrans 219
[2015] HCATrans 219
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S85 of 2015
B e t w e e n -
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Appellant
and
WZARH
Respondent
ADOLFO GENTILE IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Respondent
KIEFEL J
BELL J
GAGELER J
KEANE J
GORDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 10 SEPTEMBER 2015, AT 10.00 AM
Copyright in the High Court of Australia
MR G.T. JOHNSON, SC: May it please your Honours, I appear with my learned friend, MR B.D. KAPLAN, for the appellant. (instructed by Sparke Helmore Lawyers)
MR S.E.J. PRINCE: If the Court pleases, I appear with my learned friend, MR P.W. BODISCO, on behalf of the first respondent. (instructed by Thomas McLoughlin Solicitor)
KIEFEL J: Yes, Mr Johnson.
MR JOHNSON: Thank you, your Honours. Do your Honours have the outline of propositions that we provided this morning?
KIEFEL J: Yes, thank you.
MR JOHNSON: Your Honours, that document is, of course, intended simply as an outline of what I was going to say orally, speaking to some of the main points that we have raised in the written submissions. I should note at the outset that the appellant’s submissions are wholly pressed. I have made some effort not to try to repeat all of the detail. Could I say to your Honours also that although it is always difficult to predict how long things are likely to go, I suspect that we will be somewhat shorter than what I estimated.
KIEFEL J: Yes, I just checked the estimate on special leave. It was said to be a one‑day case. It cannot possibly be that? It is a short point.
MR JOHNSON: I think we will finish within that time.
KIEFEL J: Within one day?
MR JOHNSON: Shorter than that time.
KIEFEL J: Yes, I would have thought perhaps lunchtime would see us out.
MR JOHNSON: We will aim for that, your Honour. Your Honours, as the Court will have observed, this particular matter arises out of a recommendation made by an independent merits reviewer. This is the same kind of process that was considered by the Court in M61, and it flows from a practice of the Minister inviting assessments as to whether or not there are refugee obligations owed for the purposes of aiding the administration of certain act of grace powers of the Minister. We have attached to the appellant’s submissions section 46A and section 195A, as they relevantly were.
The changes are not material, but the provisions are they were are at pages 26 and 45 and it is not in dispute that this independent merits review process was gone through for the purposes of administering those provisions and, of course, the appellant accepts that if there is an error of law in that process, well, then a declaration can be made to that effect and that that recommendation then would not be taken into account any further.
KIEFEL J: Do I take it, Mr Johnson, that the Minister does not dispute that procedural fairness attaches to the process – in the review process?
MR JOHNSON: That is accepted.
KIEFEL J: Yes, thank you.
MR JOHNSON: It was determined by the Court in M61 and it is accepted. So the real question here is simply whether there was a breach of procedural fairness and, of course, the core facts are also not in dispute. Those are really all of the facts upon which the judgment ultimately depends. Justices Flick and Gleeson looked at the matter at a fairly high level of generality and your Honours will see that there is a summary at the commencement of the judgment whereby it is explained that the applicant had made a request for refugee assessment, he had been interviewed by someone who made an assessment.
That assessment was adverse. He sought an independent merits review. There was, in fact, an interview by an independent merits reviewer and the transcript of that is in your Honours’ book which relevantly starts from page 239, and after that interview took place the person who conducted it who was going to be the one to make the recommendation became unavailable. A different independent merits reviewer then became involved. That different person was the second respondent who then proceeded to make the recommendation which is in the document entitled “Independent Merits Review Statement of Reasons” which starts at page 3 of the book. That person had regard to the material that was then available, including the transcript, and he listened to a tape of that proceeding and then proceeded to make the decision. The applicant sought relief from the Federal Circuit Court in relation to the independent merits review recommendation and raised two arguments.
The first was that he had been denied procedural fairness because he had not been given an opportunity to be heard in person by the independent merits reviewer who actually made the final recommendation and the second was an argument as to alleged failure to take into account certain scarring on the appellant’s arm. That second argument was disposed of against the applicant by the Full Court and that matter is no longer contentious. The Full Court dealt with that on the basis that the independent merits reviewer had effectively accepted that the incident had occurred.
So we have now reached the point where we are solely concerned with the procedural fairness issue and the court below allowed the appeal and your Honours will see that in doing so, it reasoned according to there being a legitimate expectation and then something provided which was different or inferior.
Justice Nicholas provided his own reasons, but if I could just focus upon the reasoning of the majority in the main. The statements that their Honours relied upon are set out by them in paragraph 23 of the judgment, at pages 325 to 326. Those statements can also be found, of course, in the transcript before your Honours at page 240 and then, also, the last line on page 277, over to the top of page 278.
KIEFEL J: Although Justices Flick and Gleeson dealt with the matter ostensibly on the basis of there being a legitimate expectation at least in relation to the procedure to be adopted, their Honours did not go so far as to suggest that it gave rise to any substantive right. Does it really make any real difference into the end result, that is to say, is not the question really what their Honours identified as the aspect of procedural fairness which was engaged?
MR JOHNSON: Well, certainly, the ultimate issue was procedural fairness – whether the applicant had suffered procedural fairness. But the way in which their Honours approached that question was intractably intertwined with what they had to say about legitimate expectation. I will just seek to demonstrate that shortly.
KIEFEL J: It is your essential submission, as I understand it, that references to legitimate expectations is really a distraction from the issue of procedural fairness; that, in a nutshell, is really what you are saying.
MR JOHNSON: We certainly do say that, and we say that very prominently, but underlying that more particularly we say that to acknowledge that there was a departure from a representation, and even to label that departure as being a procedure which is different or inferior, does not answer whether or not it was procedurally unfair. What we say is that the ‑ ‑ ‑
KIEFEL J: I thought what their Honours were trying to get to though was that a departure from a representation might lead to a practical injustice which they come to at paragraph 29 by reference to what Chief Justice Gleeson said in Lam. So, there was a practical element. It was not entirely at a level of generality as you earlier put.
MR JOHNSON: Well, they say that the – in 29, that the – sorry, firstly, could I just say although their Honours refer to Lam we dispute that their Honours correctly applied Lam. They do refer to a practical detriment in paragraph 29 but what they say – when they speak of “practical detriment” they describe that as being the change of the administrative process which turned an oral hearing or an administrative process involving an interview into merely another opportunity to make written submissions. I will come back and say something of that more specifically in a minute.
KIEFEL J: But paragraph 29 is the key to the joint judgment, is it not? I mean, the content of procedural fairness one infers is that he was to be given an opportunity to make submissions as to whether or not an oral hearing should be granted.
MR JOHNSON: They say that he was given no opportunity to address the detriment which they identified but they do not explain why that detriment was such that it made the process which was engaged in procedurally unfair. The applicant, we say, was not ‑ ‑ ‑
KIEFEL J: That is a matter which is addressed more particularly by Justice Nicholas.
MR JOHNSON: His Honour does not use the expression “legitimate expectation” as do the other two judges.
KIEFEL J: His Honour is more concerned to identify the unfairness and the potential unfairness in the process.
MR JOHNSON: His Honour Justice Nicholas is also ultimately concerned with the fact that there has been a departure from a stated procedure. He sees the remedy as perhaps being less. He ultimately finds that – he puts the error in paragraph 57 in terms of a failure “to notify the appellant” of the appointment of the second reviewer in place of the first reviewer:
thereby denying the appellant the opportunity to seek an oral hearing before the second respondent –
But essentially he is concerned with the same worry of there being a departure from the process which was indicated, and what we say is that the fact that there might be a departure from a process which is represented as being one which is going to take place is not enough. One has to show how that departure results in practical unfairness. One has to show how the process which is in fact deployed is not itself sufficient to provide procedural fairness.
KIEFEL J: Well, you have a process which was undertaken by the first reviewer and a different process undertaken in the second.
MR JOHNSON: Yes.
KIEFEL J: Does a comparison of what is involved in the two and the nature of the inquiry undertaken on the review provide the answer to whether or not an opportunity ought to have been given to make representations about whether the first process should have been pursued?
MR JOHNSON: Firstly, at the risk of answering that at too fine a level of detail could I just make the point that because the second reviewer listened to the tape it is not correct to say, as did the plurality, that the process was turned into an opportunity simply to make written submissions, but ‑ ‑ ‑
KIEFEL J: But it was a tape, it was not an audio visual ‑ ‑ ‑
MR JOHNSON: It was not a face‑to‑face occasion where ‑ ‑ ‑
KIEFEL J: Nor was it a visual occasion. It was only – I think it appears from paragraph 34 in appeal book 11.
MR JOHNSON: That is correct.
KIEFEL J: It was only a recording, and I think that many of the points Justice Nicholas makes are related to actually seeing the applicant answer questions, particularly as to the level of confusion about a particular subject and I think that is one of the matters upon which Justice Nicholas puts quite a lot of weight.
MR JOHNSON: There are two things shortly in answer to that. Firstly, the fact that there is no visual aspect to the hearing is not something which we say converts the matter into a hearing which was unfair. There is not a general entitlement in administrative decision making to an oral hearing or ‑ ‑ ‑
KIEFEL J: Would you accept that ‑ ‑ ‑
MR JOHNSON: ‑ ‑ ‑ or to a visual hearing.
KIEFEL J: Would you accept that being able to see a person answer questions that the reviewer themselves select about the matters that concern the reviewer and seeing the person answer the question would put a reviewer in a better position?
MR JOHNSON: Not necessarily.
KIEFEL J: Well, in this case, with respect to the kinds of issues that the reviewer was actually concerned with.
MR JOHNSON: Not in this case, in our submission. The reason for that is there is no indication that any of the decision‑making at any level turned upon anything other than a comparison of statements which were found to be inconsistent, or ‑ ‑ ‑
KIEFEL J: But there were findings of credibility.
MR JOHNSON: I am sorry?
KIEFEL J: There were findings as to his credibility.
MR JOHNSON: There were findings as to credibility, but the findings as to credibility were not based on matters of demeanour. They were based on objective inconsistencies or things that the person found implausible.
KIEFEL J: Well, as Justice Nicholas pointed out, they could not have been based on demeanour, because demeanour was not observed.
MR JOHNSON: Yes, that is true but, nonetheless, there had been nothing in the initial assessment which turned on demeanour. Obviously, the second reviewer was not in a position to assess demeanour, but that is not to say the second reviewer was obliged by the rules of procedural fairness to place himself in a position where he could assess demeanour. It was enough for him to proceed on the written record, and relying upon the objective inconsistencies that he relied upon ‑ ‑ ‑
GAGELER J: Mr Johnson, if we just break this down to its most simplistic level, procedural fairness requires a reasonable opportunity to be heard.
MR JOHNSON: Yes.
GAGELER J: Here, the applicant was given a hearing on what I think you accept is the reasonable assumption that the first reviewer would be making the recommendation to the Minister.
MR JOHNSON: Yes, the first reviewer indicated that.
GAGELER J: That assumption was then falsified by circumstances which later occurred, meaning that the basis upon which the hearing had to then been conducted was not going to be the basis on which the recommendation was ultimately made. Why in those circumstances did not procedural fairness require the applicant to be given a further opportunity – not necessarily an oral hearing, but some opportunity – to make further submissions and present further evidence? It is as simple as that, is it not?
GORDON J: Or at least be told of the change, and given an opportunity to make submissions in relation to it.
MR JOHNSON: Firstly, there is no obligation for the decision‑maker necessarily to be the person who conducts the interview.
GAGELER J: Correct. In any case, the decision‑maker will be the Minister at the end of the day.
MR JOHNSON: That is right, but when I say “decision‑maker” in this context ‑ ‑ ‑
GORDON J: You mean “reviewer”?
MR JOHNSON: ‑ ‑ ‑ I would ask it to be read as the recommendation maker, but in administrative law generally there is no general obligation for the person who actually makes the decision to conduct any interview, subject of course to some statutory prescription. But then Justice Gordon’s question, with respect, is a little different. It focuses upon the applicant ‑ ‑ ‑
GAGELER J: I think it is exactly the same.
GORDON J: It is the same.
MR JOHNSON: I will accept that. But your Honour is directly addressing me to the fact that the applicant did not have knowledge of the fact that they were going to change the reviewer, and had no opportunity therefore to consider asking for something more to be done. That is what I understood your Honour to be saying to me, or putting to me.
What we say in that respect is that if the applicant did not in fact have a right to an oral hearing in the first place – if there was nothing about the circumstances of the matter looked at objectively, which entitled him to an oral hearing – and if in fact this was a case where procedural fairness could be afforded by the procedure that was in fact followed, well then in those circumstances there is no legal error – there is no breach of procedural fairness – in not telling him that there has been a change of reviewer.
BELL J: Mr Johnson, I understand the Minister accepts that in some circumstances fairness will require an oral hearing. That is at paragraph 41 of your submissions.
MR JOHNSON: Yes, we do accept that, your Honour.
BELL J: I think your further point is that there is no obligation on the person who is to make the recommendation to invite submissions from an applicant about whether or not an oral hearing should be conducted. But now, if an applicant makes submissions identifying the sort of circumstances that you concede would require an oral hearing, is the person who makes the recommendation required to give consideration to those submissions, whether or not he or she ultimately agrees to an oral hearing?
MR JOHNSON: If there was some circumstance presented or contended to that person whereby it became apparent, for example, that the person could not manage an oral hearing – perhaps because the person is illiterate and does not have any assistance available – or, if something is said which moves the recommendation maker, or decision‑maker, I might say, for the sake of simplicity – to feel that the matter cannot just be resolved by looking at the objective body of material before him or her, some oral hearing may be necessary.
BELL J: Is the answer to my question that the decision‑maker would be required to give consideration to the submission?
MR JOHNSON: At least if it reaches a certain threshold.
BELL J: Well, if that is accepted, why is not the process adopted here in the circumstances of this case unfair because this applicant had no occasion to consider whether he should make a submission asking for an oral hearing because, as he understood it, he had that and then the procedure changes, without him knowing of it, so there is no opportunity for him to put such matters as might, as the Minister concedes, require an oral hearing?
MR JOHNSON: The reason why what has already happened is procedurally fair is that ultimately what we are talking about is whether or not the application was granted the opportunity to be heard ‑ ‑ ‑
BELL J: About the process.
MR JOHNSON: ‑ ‑ ‑ that satisfies procedural fairness. It might be that there are better or worse ways of doing things but there is a certain legal requirement of natural justice and that relevantly is concerned with the sort of considerations that we have referred to there in our paragraph 4 of the outline that I have provided to your Honours.
There is no suggestion here that the applicant could not put forward what he wanted to put forward, or there is no suggestion that there was any issue which was critical which was not identified or that there was some adverse material the substance of which was not put to him. He led no evidence in the court below that, had he been told that the reviewer who had seen him was no longer available, he would have then taken certain steps.
GAGELER J: Would that be an answer to your appeal, if that evidence had existed?
MR JOHNSON: If the applicant had have put on evidence to show that in consequence of the representation, he did or omitted to do something which could have affected the result, or if he was able to show that he was misled ‑ and I am talking of misleading in the sort of kind that was in Aala or Muin ‑ then if such evidence had been given, well then we have had a different case and we probably would not be here because there would then be an assertion that he suffered some practical injustice as a result of the disappointment.
But this applicant did not take that step. This applicant did not put on evidence to show that had he known that the first reviewer was no longer available and that somebody else was going to decide the matter, he would have taken certain steps, and ‑ ‑ ‑
GAGELER J: One of those steps might have been to ask for an oral hearing.
MR JOHNSON: It might have been.
GAGELER J: Another step might have been to supplement the submissions already made ‑ ‑ ‑
MR JOHNSON: Yes.
GAGELER J: ‑ ‑ ‑ in light of the new decision‑maker not having seen and heard him. Why can we not infer that they are obvious steps to take in circumstances where the applicant was well advised by a migration agent?
MR JOHNSON: That assumes that the applicant actually believes that there is something to be gained through the decision‑maker seeing him and interacting with him. The applicant had an opportunity to put on further written material if he wanted. If the applicant is to bring a case – sorry, if a case is to be ‑ ‑ ‑
GORDON J: But that ‑ ‑ ‑
MR JOHNSON: ‑ ‑ ‑ in our submission, if the case is to be sustained – sorry.
GORDON J: The opportunity to put on new additional written submissions was in the context of first reviewer in response to matters that had been raised during the first review.
MR JOHNSON: Yes, that is right. I am not suggesting otherwise, your Honour, but there is no evidence from him – there is no evidence from him that had he known of the change that he would have taken some further step or made some further application to seek an interview with the second reviewer whereby he was actually seen as well as heard.
KIEFEL J: Well, it is not just seeing, is it? Why can we not infer, as Justice Gageler says, that he would have made an application for an interview, because from his point of view he has answered the questions of the first interviewer. He does not know what is in the mind. He does not know what the concerns of the second reviewer are.
MR JOHNSON: But that is ‑ ‑ ‑
KIEFEL J: He does not know that until he gets the reasons.
MR JOHNSON: But he may – that assumes that he thinks that he can do better, in effect. That assumes that he thinks ‑ ‑ ‑
KIEFEL J: No, it assumes that he will be able to answer the particular inquiries put to him which reflect the concerns of the second reviewer about the quality of the evidence, concerns which are then reflected in the reasons.
MR JOHNSON: But, your Honour, there is no evidence that the second reviewer did have fresh concerns.
KIEFEL J: Well, we cannot know, unless one does a comparison of the areas of questioning put to him in the interview which did take place and then analyses the reasons which are produced by the second reviewer.
MR JOHNSON: The likelihood is – given what did in fact happen, that the second reviewer proceeded to decide the matter on the papers without inviting him along to the hearing, that the second reviewer thought that the issues in his mind were answered by what was there. The applicant has to prove that a breach of natural justice has been suffered and, in our submission, he could not succeed in this case without putting on evidence that he did in fact do or refrain from doing something as a consequence of an understanding that the person who conducted the interview would be the person making the recommendation, and that evidence was not there.
If it were introduced, it would be a whole new ball game. Of course, it might be that if a court sees such evidence it might not be persuaded by it for various reasons but if, as a general proposition, the evidence is such that it shows that the applicant did or omitted to do something as a result of the representation being breached, which could have affected the decision, well then it is a different case, it is not this case.
KEANE J: It is a difficult thing to say that though, is it not, in this sort of case where an applicant for refugee status who is making the application, presenting himself or herself for interview, speaking through an interpreter, dealing with these issues in a language that is not his mother tongue, that would seem to be - the effect that his actual presentation makes on the reviewer would seem to be an important aspect of this process, given that the reviewer has the opportunity to see whether difficulties that the reviewer might see in the answers objectively are attributable to difficulties of language, whether the interviewee seems to be genuine or not. Now, does he have to say I want the opportunity to demonstrate that I am genuine in my claim?
MR JOHNSON: We might be a little bit at cross‑purposes, your Honour. There is no doubt that an oral interview offers the sorts of benefits that your Honour is alluding to.
KEANE J: Does he have to say, “I want those benefits”?
MR JOHNSON: But – no, your Honour, my point is he gave no evidence to the Federal Circuit Court that he would have done something, had he known what had happened. That is my point. There is evidence that he had not – that things were said to him, as a result of which he could expect that the person who interviewed him was going to be the person who made the recommendation.
KEANE J: Can we just, for a moment, not worry about expectations. Can we just – now, the Court has said previously that the extent of procedural fairness can often depend upon the statutory framework within which the decision‑making occurs.
MR JOHNSON: Yes.
KEANE J: Here, of course, the statutory framework is at a great level of abstraction. It is really just the Minister has to make decisions and within the Department gives guidelines requiring independent merits review to assist the Minister in making the decision. Now, in M61, those guidelines were before the Court. They are not before us.
MR JOHNSON: That is right.
KEANE J: But if one looks at the record of interview, at page 239, we see that at the bottom of the page, line 49, the independent merits reviewer, who introduces herself to the applicant, says:
This interview is recorded to make sure I have an accurate record of the interview for the purpose of conducting an independent review of your refugee status assessment.
Then, at 25:
My role is to provide advice and recommendation only. Once I have completed my report and make a recommendation on your refugee status, this will be given to the Minister for Immigration and Citizenship for consideration. If, following my assessment of your claims, it is my recommendation you are found to be a refugee, the Minister may intervene to allow you to lodge an application for a visa ‑ ‑ ‑
MR JOHNSON: Yes.
KEANE J: So can we take it that, quite apart from expectations that are being generated, what the interviewer is saying there about the process that the Minister requires of her is accurate?
MR JOHNSON: No, she is not saying “I am obliged to conduct this interview” ‑ ‑ ‑
KEANE J: No, no, she is saying “This is what I am doing ‑ ‑ ‑
MR JOHNSON: “This is what I am doing”.
KEANE J: My question is can we take it that she is doing that in accordance with the instructions given in the guidelines by the Minister?
MR JOHNSON: I do not concede that the guidelines obliged her to conduct an interview.
GORDON J: But she did.
KEANE J: But she did ‑ ‑ ‑
MR JOHNSON: She did, there is no doubt about that.
KEANE J: ‑ ‑ ‑ and what she did was in conformity with them.
MR JOHNSON: There is no suggestion otherwise.
KEANE J: Yes. My question then is the process that was being pursued was this process which involved an interview by this interviewer with a view to providing advice and recommendation to the Minister?
MR JOHNSON: It was a process which could involve that. It is not conceded that the process necessarily had to involve that. What I am saying to your Honour is that in this particular case, which, as your Honour has observed, is in a framework which exists more as a matter of policy than specific statutory provisions ‑ ‑ ‑
KEANE J: The framework is administrative within the Department ‑ ‑ ‑
MR JOHNSON: Yes.
KEANE J: ‑ ‑ ‑ emanating from the Minister.
MR JOHNSON: But what we are talking about is a scenario whereby the law does not require an oral interview to take place. There is no evidence, and it is not conceded, that any guideline or policy required an interview to take place. We are legally in the domain whereby the review could have been conducted with or without an oral interview.
KEANE J: It could have been conducted with or without. It was conducted with.
MR JOHNSON: Yes.
KEANE J: That is in conformity with the Minister’s requirement in terms of the assistance that the Minister wants to make the decisions under 46A or 195A.
MR JOHNSON: I might be reading your Honour too literally. When your Honour says it is in conformity with a requirement, the Minister is seeking to have ‑ ‑ ‑
KEANE J: Meaningful assistance.
MR JOHNSON: ‑ ‑ ‑ assessments conducted. But that is not to say that the Minister is requiring oral interviews to be conducted, or the equivalent of oral interviews. Your Honour, my point about the lack of evidence as to what he would have done ‑ ‑ ‑
KEANE J: Sorry, can I just ask you one further question? Are we to take it that it is evident that the Minister’s guidelines or instructions contemplate the possibility of a process conducted by a number of reviewers, that is to say, that there is not an independent merits review by the reviewer, but that there can be some sort of job‑sharing process?
MR JOHNSON: Your Honour, as far as I am aware there is nothing which would require the person who conducts the interview to be the same person who makes the recommendation. I cannot say anything more to your Honour than that, I do not think. As your Honour said earlier, there is no evidence about the precise procedures but it is certainly not agreed that it is somehow inconsistent with any requirement or, indeed, with any policy that a review be completed by a person other than the person who conducts the interview if that is considered appropriate. In this particular case, I spoke of the lack of evidence ‑ ‑ ‑
GORDON J: Can I deal with that lack of evidence point?
MR JOHNSON: Yes.
GORDON J: In Lam, Chief Justice Gleeson at paragraph 34 says that it is possible - his Honour’s words are “easy” - sometimes to establish procedural unfairness just by, in fact, what occurred. Why is evidence necessary? In other words, here why is it not open to this Court to look to, precisely consistent with Lam, what, in fact, occurred and determine from those facts alone whether or not there has been procedural unfairness?
MR JOHNSON: Because all that we know is that there has been a departure from the representation. We do not know that as a consequence of that departure the person did or omitted to do something which could have affected the result. There is certainly no evidence that he was misled in any way.
GAGELER J: Why does not the want of procedural fairness lie in the denial of an opportunity to make further submissions? Why does an applicant need to go to the point of saying – of establishing affirmatively that the opportunity would have been taken up?
MR JOHNSON: Because there is no – generally speaking an administrative decision‑maker is able to choose his own procedure. Of course, at the end of the day the court then has to assess, if called upon, whether or not that procedure is fair but there is no general obligation to call upon people as to how they want matters to proceed. In this particular case, there was nothing done, therefore, which amounted to any procedural unfairness. One curiosity about this case is that the Full Court and all members of the Full Court found it unnecessary to decide whether there was any entitlement to an oral hearing in the first place.
KEANE J: It happened in the course of a process where it was taken for granted that the process that was being undertaken would commence with the interview and conclude with a recommendation by the person who conducted the interview.
MR JOHNSON: But there was no entitlement to be given – sorry. If he was not ‑ ‑ ‑
KEANE J: Mr Johnson, we are not talking about entitlement. We are not talking about some statutory structure that creates a right. We are talking about procedural fairness. The procedure was embarked upon.
MR JOHNSON: But if he has no – and I apologise for using the word “entitlement” again, but if he has no entitlement to a hearing and if he has no entitlement to be called upon to address as to what procedure is to be followed, then, in our submission, the concern evaporates. There is an assumption that he is entitled to be heard as to the procedure to be adopted by the reviewer and, in our submission that, with respect, is not correct. The reviewer could choose his or her own procedure.
GORDON J: They did and they changed it.
MR JOHNSON: Well ‑ ‑ ‑
GORDON J: They did not tell him.
MR JOHNSON: One person conducted an interview and somebody else concluded the matter based upon the record, oral and written, of that interview. But there was no entitlement to be addressed as to the procedure and it is difficult to see how, if there was no entitlement to an oral hearing and no entitlement to be addressed as to procedure, somehow there was an obligation to tell the applicant that the first reviewer was no longer available.
The second reviewer was entitled to make a recommendation without there being a further oral interview if she considered that that was possible on the material that she had, or he had. It was a he in this case. It is not a case where the decision‑maker thought that something more was necessary in order to be able to make a recommendation, and the matters upon which the recommendation were based were all matters of inconsistency or perceived implausibility of matters which were not dependent upon impression.
But with respect to this question of evidence, could I just emphasise that the only evidence in the court book from the applicant to the Federal Circuit Court is at page 282 – I am skipping over the first page of the affidavit, but at page 282 of the book – I will not read it aloud, but he makes the point that he did not meet the person who was named as the author of an RSA report on 29 April, and then further down he talks about participating in an independent merits review on 16 January 2012 and then he names the first reviewer, and at the interview tells us what he wore, “hot climate”. Again, he is principally concerned here with talking about the scars. Then he says:
I have never met or been interviewed by –
then he names the second respondent –
who is named as the author of the IMR report dated 25 July 2012 for my application for protection in Australia. I expected the author of my IMR report would be –
and then he names the first reviewer ‑
I have never been asked to provide, and I have never provided –
and then he goes back to the scars. But what he does not do in this affidavit is to go on and say, had I known that the person who was to actually provide the recommendation would be somebody other than the person who interviewed me, I would have sought an interview before that person and then said something to us so that we could evaluate whether or not he would have done something or refrained from doing something which could have affected the result.
GAGELER J: Mr Johnson, he is at least saying, I would have wanted to show Mr Gentile my scars.
MR JOHNSON: Well, yes, he does say that but we are in a situation where the second reviewer accepted this harm. You see, if that was his only evidence, I wanted to show the scars, that would go nowhere because the second reviewer in fact accepted that alleged harm. So, if that was the evidence, your Honour, then, in my submission, we would be left with no evidence able to make out a claim of breach of procedural fairness.
KIEFEL J: In any event, Mr Johnson, I think we understand your point about evidence.
MR JOHNSON: Thank you, your Honour. Now, your Honour, could I just refer your Honours just in this respect in the immediate context of the discussion we were just having, to Lam at paragraph 36 where ‑ so, this is, of course, Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam 214 CLR 1 and paragraph 36 is on page 13 and the paragraph starts by noting:
The more fundamental problem facing the applicant, however, relates to the matter of unfairness ‑
And then if I could just ‑ it is suffice for me I think just to read the last six lines ‑
Yet no attempt is made to show that the applicant held any subjective expectation in consequence of which he did, or omitted to do, anything. Nor is it shown that he lost an opportunity to put any information or argument to the decision‑maker, or otherwise suffered any detriment.
That is what I am getting at, that in Lam, throughout these paragraphs, his Honour the Chief Justice was then requiring some evidence to show that the departure from the representation in fact did have some practical consequence.
GAGELER J: Mr Johnson, do you accept that those last two sentences at paragraph 36 that you read refer to different ways in which procedural fairness might be denied; one on the basis of subjective expectation, the other on the basis of lost opportunity?
MR JOHNSON: His Honour is making two points. It is really the second that I am focusing on, where he says:
Nor is it shown that he lost an opportunity –
et cetera. It is not shown here that the applicant did or omitted to do something which he would have done had he known of the change.
BELL J: Your submission is there was no lost opportunity to advance further matters in support of his application, whereas the focus in these circumstances might be thought to be no opportunity to put submissions about the way the review might proceed in the circumstances as they had arisen, including the opportunity to submit that it would be appropriate for the new reviewer to see him personally in order to make an assessment of the matters that Justice Nicholas refers to at paragraph 53 of his reasons.
MR JOHNSON: He carried an onus to show that there was a practical consequence attached to the change. It is not a matter of us saying ‑ ‑ ‑
BELL J: I understand you put that point.
MR JOHNSON: Yes.
BELL J: Do you suggest that that is necessarily the import of the concluding sentence of paragraph 36 of the Chief Justice’s reasons in Lam?
MR JOHNSON: Well, not just paragraph 36, but that whole section of the judgment, really - probably particularly from 34 to 38 is concerned with the need for an applicant to make out that there has been some practical unfairness suffered. Here, the applicant may or may not have wanted another opportunity for a face‑to‑face interview. He may or may not have wanted to ask to be seen by the person who was to make the recommendation. He may or may not have thought that he had something gain from that. Not everybody is going to have something to gain from a face‑to‑face interview.
In any event, the onus was on him to show that had he known of this change, well then there were things that he would have done and if he had taken that course, then the result might have been different. With respect, in our submission, those difficulties do not evaporate simply because he is not given a hearing as to the procedure to be followed, because that assumes he has an entitlement to be heard as to the procedure to be followed, whereas in fact it is a matter of looking at what the decision‑maker ultimately does and then applying a test as to whether or not that was fair.
Before one can conclude that it was not fair here, one needs to do something more than to prove that the representation was frustrated and that the applicant did not know about that. He needed to prove some practical consequence which he did not do.
KIEFEL J: Is there anything further that you have not dealt with in your outline?
MR JOHNSON: I was just taking stock. I think that the main points have already been discussed. As I said at the beginning, it was not my intention to repeat all of the written submissions, but rather to leave those to speak for themselves. I think that things which are flagged in this outline have mostly been touched upon. I will just try to speak briefly to some of this. The proposition that there is no general requirement for an oral hearing is not something which I apprehend to be in dispute, but in any event ‑ ‑ ‑
KIEFEL J: I do not think it was a premise upon which any member of the Full Court proceeded.
MR JOHNSON: No, that is correct. What we are saying in relation to that, of course, is that in this particular case there is not shown any feature such as would, at least arguably, lead to an entitlement to an oral hearing. The sort of features which could require an oral hearing, which are not shown here, we have delineated in paragraph 17 of the outline that I gave your Honours.
We have referred to a number of authorities in relation to the proposition that an oral hearing is not always required. I will not go to them unless your Honours want me to, but perhaps two that are particularly useful are a judgment of Justice French sitting alone when his Honour was on the Federal Court, in Zhang v Minister for Immigration, Local Government and Ethnic Affairs, which is referred to in our submissions; in particular, the discussion by his Honour at pages 407 to 408, and remarks made by his Honour towards the bottom of page 410 – if I could just give that reference.
Also Chen & Ors v Minister for Immigration and Ethnic Affairs was a judgment of Chief Justice Black, Justices Lee and Heerey at Federal Court (1994) 48 FCR 591 and the parts that are perhaps particularly helpful are on page 597 (e) through to (g) and also on page 602.
Also, in relation to the capacity for administrative decisions to be taken by people other than the person who conducts the interview, there are some general comments in Whim Creek Consolidated v Colgan by Justice O’Loughlin, with whom Justices Spender and his Honour Justice French, as he then was, agreed and those comments by Justice O’Loughlin are particularly on page 493 from about – in the lower two‑thirds of the page but particularly towards the bottom of the page.
KIEFEL J: Yes.
MR JOHNSON: Could I also draw your Honours’ attention to paragraph 21 of the joint judgment at page 324 where Justices Flick and Gleeson acknowledge that:
Administrative decision‑makers may, of course, conduct an oral hearing and thereafter become unavailable . . . And there is no universal requirement that a party who has initially been given the opportunity of an oral hearing need necessarily be also entitled to be heard by the final decision‑maker. Again, those factors which may indicate that a further oral hearing may or may not be required are those which may have first indicated the prudence of an oral hearing.
What their Honours seem to have in mind in that respect are the sort of integers that are talked about in the cases as perhaps requiring the administrator to conduct an oral hearing, for example, the inability of the applicant to participate otherwise the decision‑maker feeling a need to look at matters of demeanour and the like, or feeling unable to decide the matter
on the papers. There is just no evidence of those speeches. If your Honours please, those are the appellant’s submissions.
KIEFEL J: Thank you, Mr Johnson. Yes, Mr Prince.
MR PRINCE: Thank you, your Honours. Do your Honours have the first respondent’s outline of propositions?
KIEFEL J: Yes, we do.
MR PRINCE: Thank you, your Honours. Can I just deal, before I turn to the terms of that document, with some of the matters which have emerged in my learned friend’s oral argument? The issue about no evidence of what would have been done by the respondent had he known that the reviewer was being changed from the one who had heard his oral evidence and explanations at the interview, there is a range of evidence about that.
It is incorrect to say that it is only the evidence in the affidavit because the totality of the evidence which was before the Full Court below obviously included the transcript, the fact that the respondent when he had been given an opportunity to hear and be heard and present oral arguments by the first reviewer had taken that opportunity had sought to explain inconsistencies in matters to the first reviewer as best he could, including reference to having made a mistake in something that he said because of his confusion, his memory lapses and the effects of immigration detention upon him.
That explanation for an inconsistency – and I will just briefly explain to your Honours what it was because it was quite important in the outcome of the case and it is picked up by Justice Nicholas in his Honour’s separate reasons. The essence of my client’s claim was that he had a fear of persecution on being returned to Sri Lanka because of his relationship with a certain Tamil politician who was the first Tamil UNP member for a particular part of Sri Lanka in 48 years and who was a significant politician who was ultimately assassinated in 2008.
There was a question asked of him at the interview to test obviously the level of his relationship, or asserted relationship with this man as to which occasions he had assisted in the elections for that man in that particular district that I have just referred to.
There were three occasions – as the respondent said, it was thrice – the last occasion he identified in answer to that immediate question was 2004. There was some significance to that because it was 2004 in which he was abducted by the EPDP, and it was accepted that he was abducted, or he was detained, and mistreated in detention.
That issue about the timing of that abduction, together with the existence of the election in Sri Lanka in 2004, and his connection with this particular politician was important. As it turns out, that politician had in fact changed seats in 2004 from the significant seat that he had won after 48 years, to another seat in Colombo. That was presented to the applicant as an inconsistency, and the applicant said, “I am sorry, I have made a mistake. He was not running for that seat in 2004, although I assisted generally with the campaign of that party around that time, and I had the prior association”.
Now, as Justice Nicholas quite correctly picked up, that evidence was in fact – although the reviewer did not seem to notice this – was in fact different to some earlier statements he had made in the interview in which he was cognisant of the fact that this particular politician had changed seats in 2004 to Colombo.
The assessment of the explanation that he was confused at that point in time when he gave the wrong answer in the interview became an important feature in the reviewer’s decision – I should say the second reviewer’s decision. The second reviewer at paragraphs 80 and 81 of the reviewer’s decision – I will just perhaps take your Honours to that.
Just to make good the proposition about the politician, can I give your Honours a quick reference to AB 19, and paragraph 70. Then, the key findings of the second reviewer are at page 22 of the book, at paragraphs 80 and 81. There, what happened in the interview is directly referred to by the second reviewer. So this is not something that could have been done on the papers in the absence of an interview. There is a note that he – being the respondent in these proceedings:
conceded this –
That he had made a mistake –
only after a report from a newspaper was read to him indicating that in the 2004 election [that politician] had stood for a seat in Colombo. He stated that he had been confused about this, yet he had insisted that he had lit fires to stop opponents of this man from having a political gathering.
Incidentally, those two matters are not necessarily inconsistent:
His explanation as to the reason he had lit fires in the circumstance when this man was not standing for election in the local electorate, was simply that he was supporting the Tamil cause.
I do not accept that this kind of error was due to memory lapse or confusion, no indeed to the effects of detention, as he has claimed from the beginning that he was supporting this candidate in the 2004 election in Jaffna.
Now, that is not actually correct. If one goes to page 252 of the book, which is where the transcript occurs - and this is the point that was picked up by his Honour Justice Nicholas in his Honour’s separate reasons. At page 252, line 20, this is some time before the statement about confusion which appears on page 255 - sorry, starting page 254, starting at line 20 and your Honours will see the mistake in the evidence from lines 20 to 30 and then the concerns about the credibility based on that answer at the interview by the first reviewer are put at lines 40 down to 55 and then the response, the answer, the explanation to the perceived inconsistency arising from his evidence at the interview is set out from 55 over to page 255 of the book to line 9. Then he goes on also at line 40 to talk about having been confused because he had been in detention for about 15 months and it has taken a toll with regards to his memory:
If I have done any mistake I would like to request you to grant me – sorry, I would like to seek apology . . . I really got confused . . . the moment the interview started I got confused.
That is his direct human explanation for an inconsistency which is raised with him directly by the first reviewer. That is the type of exchange which goes to the heart of the human element to ascertaining credibility and, of course, I accept that judges cannot place too much emphasis on those indiscernible human elements but it remains the case that they are an integral part of fact‑finding by decision‑makers, particularly in circumstances where in this particular case, and generalities do not assist in dealing with the content of procedural fairness in a particular case ‑ ‑ ‑
KIEFEL J: Mr Prince, are you putting the submission, which I think comes from paragraph 2 of your outline, in aid of an argument that the second reviewer ought positively to have had an oral hearing?
MR PRINCE: Obviously that is one submission that I put but at the very least when this issue was raised, when it became obvious that what happened at the first interview was going to be relevant to the decision of the second reviewer and the explanation was going to be relevant to the second reviewer in rejecting the respondent’s credibility, at the very least he should have been put on notice about that or put on notice that the reviewer had changed.
KIEFEL J: You mean you derive from the second reviewer’s decision itself a state of mind sufficient that should have alerted the second reviewer to the possibility that the applicant may need to be seen by him ‑ ‑ ‑
MR PRINCE: Yes.
KIEFEL J: ‑ ‑ ‑ so he would need to give him the opportunity to address whether that was the case.
MR PRINCE: Yes, or at least consider whether that should be done, consider whether the explanation should be delivered personally or whether he was somehow impeded by the fact that he was not seeing this explanation being given. It is not correct to say – and this is not the type of case where the matter could have been decided on the papers based on glaring improbabilities or type of inconsistencies that would not necessitate a hearing to make an assessment about credibility.
There is actually almost a dovetail with the approach in Fox v Percy between the types of adverse credit findings which it is relatively safe to make at one end of the spectrum, where something is glaringly improbable or just an anathema to objective undisputed evidence, and at the other end of the spectrum where a judgment must be made, ultimately, and an assessment must be made.
On that spectrum – which was a spectrum, might I say, that was really considered by the Full Court below – the cases are clear that in an appropriate circumstance, although there is no general duty to afford a hearing, in circumstances it may be appropriate to do so. Those circumstances are not closed to a list that can be reduced to enumerated paragraphs, but primarily involve circumstances where some judgment is going to be formed about a person’s credit or explanations, and that is being done in the absence of some compelling independent material that must produce a particular result.
Their Honours in the case below, in the Full Court, were cognisant of that, and in the plurality were quite clear – starting, for example, at appeal book 324, paragraph 21. There is nothing exceptional about their Honours’ statement there and, indeed, the point that is being made in the last sentence is the rather obvious one, that if there is something that would appear to necessitate a hearing in the first instance, and clearly there was something that appeared to the first reviewer sufficient to justify having a hearing – and one can see that from the transcript because there are these questions about inconsistencies and an opportunity to provide an explanation – those factors had not disappeared by the time the second reviewer came along; those factors were still there.
It was still a live controversy as to whether or not this error – in fact, the controversy had become more intense as to whether or not there was an inconsistency about some of his evidence about the timing of this particular politician’s candidature in a particular seat, and his explanation for what may appear to be inconsistent evidence about those matters.
Those issues which correctly led the first reviewer to take the view that a hearing was necessary were still present and, in the circumstances, there was, in my submission, primarily at least an obligation to consider whether a hearing was necessary and take submissions about that, and at best an obligation to conduct a hearing. But on either account, the respondent was denied procedural fairness because neither of those things happened.
So, whichever avenue one takes, the same result inures, which is that there was a simple denial of procedural fairness on the facts of this particular case. There is no need to create any broad, general rule about legitimate expectations to achieve that result.
My learned friend’s submissions about the evidence necessary to show that the respondent would have taken a different approach really do belie the difference between the parties in terms of what Teoh does and what the notion or concept or whatever you want to call it of legitimate expectations involves.
My friend’s approach is really more consistent with that approach to legitimate expectations which Lam said was not acceptable, that is, where legitimate expectations form some particular and independent rule of law, a breach of which gives rise to constitutional writs or relief, and the elements of that legitimate – one path that some courts have gone down but the courts in this country have resisted is that a legitimate expectation might be seen as a doctrine, it might have components. Those components are a representation, a departure from representation, and what is, in essence, what commercial lawyers would know as detrimental reliance on the representation.
That is the approach that the Court was concerned with and wished to avoid in Lam, that is, this Court in Lam took the view that ‑ and picking up what Justice McHugh had said in Teoh and what Justice Brennan had said in Quin, that really the real issue in relation to constitutional writs in this country about fairness is about procedural fairness. Procedural fairness has developed in a way in this country which allows it to embrace and deal with circumstances which might otherwise had to have been put into a doctrine of legitimate expectation in other countries.
There is no need for that to be pursued in this country and so long as there is a procedurally unfair hearing which delivers practical injustice to the person subject to the decision then the requirements of procedural fairness are made out. There is a harmony between that proposition and the inherent flexibility that this Court has ascribed to the contents of procedural fairness over many years, that is, that it does not have a set of fixed categories which require enumeration and breach to establish. It depends on the circumstances of the case and the question at common law, anyway, for procedural fairness is entrusted to the good sense of the courts who determine those questions.
The circumstances of this case, in my submission, fundamentally involve a denial of procedural fairness. I cannot take your Honours to any authority where this exact situation has occurred before unsurprisingly because one would have thought that in a case like this it would have been very easy to provide procedural fairness.
There is no question of limited resources or impact on policy or anything of that nature. In this case, the respondent was still communicating with the reviewer up until 7 May 2012 at which point ‑ and the references are in the outline of propositions – it was clear that it was already known internally that the second reviewer had been appointed because the submissions which the first reviewer had invited at the conclusion of the interview were on the very same day, once they were received directed to the second reviewer, and after they had been directed to the second reviewer a confirmation of receipt of those representations had been provided to the applicant but with no mention of the fact that the reviewer had changed. Can I just take your Honours briefly to those documents which deal with that?
GAGELER J: I do not recall any finding to that effect in any of the judgments below. You are asking us to infer that sequence of events from these documents, are you?
MR PRINCE: Yes, it is – there was in the document which was before the court below and the point was made to the court below that ‑ your Honour is quite right, there was no express finding about that because really their Honours did not need to make any express finding about that because it was accepted that there was a change prior to the decision being handed down and that the respondent had never been advised of that change. Really, that is, in a sense, all you need to know. But it was not – I am just addressing the concept or potential for an argument that perhaps it would have been procedurally difficult to have accorded procedural fairness in this case and advised the respondent that there had been a change. The references to ‑ ‑ ‑
KIEFEL J: I do not think that is put against you though, is it?
MR PRINCE: No, no, so I will move on. I think I was giving that by way of an explanation as to perhaps why it is that there is not any real case law dealing with this sort of situation occurring and I have not seen anything or any situation like this before. It would be as extraordinary as a special leave hearing where two justices hear the case, retire to the back and two other judges come and deliver judgment. In those circumstances, there is no entitlement to a hearing.
There are no rights affected because it is just a determination of the existence of the requirements for special leave but, nonetheless, it would be unthinkable for a person to be invited to a hearing to be given the pretence of the hearing, to engage with the people that he or she thinks may be making the decision which will have an impact on him or her and then to find that the decision is being given by a completely different person.
So there is no taxation, or there is no damage done to the flexibility of procedural fairness, and there are no significant adverse consequences to good administration to acknowledge that the flexibility of the doctrine of procedural fairness allows for it to prevent the very sort of procedure that one saw in this situation which is just really inherently unfair.
Indeed, the formulation or the resort to formulations of legitimate expectation by the plurality was really just a form of expression or a manifestation, or a categorisation of a circumstance which is just quite extraordinary and their Honours were simply breaking down and analysing in parts what had happened in this case and why it was unfair.
It is undoubtedly the case that one of the elements of the procedural unfairness in this case was that the applicant had been led to believe that the person who was going to decide the case was the person who was going to hear the case, and he gave his explanations and he gave his oral evidence accordingly.
So the attempt by the appellant to ascribe to the use of terms like “legitimate expectation” in the plurality’s reasons should not be allowed to distract from the fact that it was plain from a fair and full reading of their Honours’ reasons that it was the fundamental unfairness of the process that was adopted in this case that was the subject matter of their Honours’ concern, and that the practical injustice – for example, your Honours will see at page 327 of the book, line 50, starting at line 48, their Honours say that:
The difficulty for the Respondent Minister in the present case is that the Independent Merits Reviewer who made the July 2012 recommendation did not have the opportunity to see the Appellant in person. Listening to a tape recording or reading a transcript is no substitute for extending to the Appellant the opportunity which he was first given and which he was led to believe he would be given, namely an opportunity to impress upon the person who made the recommendation the merits and genuineness of his claims.
That is not an explanation of a doctrine of legitimate expectation seeking to import into Australian law treaties and obligations which have not been incorporated into Australian law. It has nothing to do with Teoh, or the criticisms that have been made by Teoh. Their Honours go on at 328 to say, at line 12:
It is to be constantly recalled that the rules of procedural fairness are not directed at the outcome of an administrative process but rather at ensuring a fair hearing.
Their Honours addressed the issue about whether or not it could be said that, well, there was no obligation generally for a hearing, so how can there be a denial of procedural fairness if a hearing was not provided by the second reviewer. But, of course, although the plurality were criticised by my friend for putting their reasons at a high level of abstraction, that submission is at such a high level of abstraction as to be of no assistance. That is because it may be accepted that in general there is no right to a hearing but, as I think your Honour Justice Keane pointed out, this is not a question about whether there is a breach of a right to have an oral hearing.
This is a question about whether in the totality of the circumstances there was an unfair process adopted which had an impact on the second reviewer’s decision that the applicant is not a person to whom Australia owes protection obligations and conclusion that he is not a person who would qualify for a protection visa.
That approach – and I have given your Honours some reference in line – I have tried to pull together the references which make it plain that the Full Court’s approach was orthodox, at item 3 of the outline, going over to page 3. There is reference both to the plurality and his Honour Justice Nicholas.
Justice Nicholas’ decision cannot be impugned in any way on some criticism that his Honour had applied a doctrine of legitimate expectation. His Honour was entirely concerned with demonstrating practical unfairness and, indeed, his Honour explained Lam, and in particular, Chief Justice Gleeson’s reasoning in Lam in a - if I may say so with respect - very clear way at paragraph 47 on page 334 of the appeal book, and dealt with the submission at 335 of the book, paragraph 50, that demeanour played no part in the decision.
There is a circularity about the appellant’s argument that, well, because there was no hearing, demeanour played no part; therefore, there was no obligation to have a hearing. It is a circularity which is quite obviously pierced by the fact that the second reviewer did in fact have regard to what happened at a hearing – it is just that it was not a hearing before him – and had regard to what happened at the first reviewer’s hearing.
The cases that deal with decisions that can be made simply on the papers where credit is not an issue, or credit can be resolved without the need to see the witness, simply have nothing to do with this case. The fact that there had been a breach of a fair procedure by failing to observe demeanour is hardly an answer to whether or not there was a breach of a duty in the first place.
Your Honours, I just thought I should deal with the authorities that my learned friend referred to in closing his oral submissions, in particular Chen 48 FCR 591. As I recall, my learned friend took your Honours to page 597. That simply states the general proposition that an oral hearing is not necessary in every case, and that can be readily accepted without undermining the Full Court’s reasons in this case. Indeed, the Full Court referred to Chen – at least, the plurality referred to Chen – at page 321 of the book, lines 18 to 20.
KIEFEL J: What is the paragraph number, Mr Prince?
MR PRINCE: It is paragraph 14, your Honour, I believe – I am sorry, your Honours, at page 320 of the book, starting at paragraph 13. Their Honours do not refer directly to Chen, but their Honours ‑ ‑ ‑
KIEFEL J: But they refer to Heatley, which is the case that they cite.
MR PRINCE: That is right. There is nothing wrong about the plurality statement of the approach to whether or not a hearing is necessary in the circumstances in paragraphs 13 and 14. They are entirely unexceptional statements of law which are not contrary to any of the authorities to which my friend has taken your Honours and they culminate in what really is a clear understanding of paragraph 16 of the plurality’s reasons at page 322. But whether the rules of natural justice or procedural fairness require an oral hearing depends on the facts and circumstances of each individual case, so no error of law there.
There was an interchange between my learned friend and your Honour Justice Keane about the Minister’s guidelines which lay at the heart of M61 of an obligation to accord procedural fairness. Of course it is accepted in this case that there is an obligation to accord procedural fairness, it does not need to be established again.
In answer to your Honour’s question about whether the policy or ministerial notes or guidelines or whatever they are called would contemplate a change of reviewer or job‑sharing arrangements I think was the expression your Honour used, my learned friend’s reply did not address your Honour’s question.
What my learned friend said was that nothing in the guidelines would prevent it, but there is just nothing to indicate that it was or at any time – and there is no evidence to indicate that it was at any time contemplated or communicated to anybody that this type of process would be what the Minister was holding out, or was committed to provide by way of procedural fairness to applicants in this process.
That is unsurprising because the circumstances are so extraordinary one would not expect to see a policy which expressly addressed this question. There had not been any cases where something like this had happened that I have been able to find. That may have changed but the fact is there is nothing in the nature of the duty to accord procedural fairness which ultimately is simply the common law duty to accord procedural fairness, which would suggest that excised from that obligation to accord procedural fairness is any requirement to, in particular circumstances where there is a change of reviewer without notice, to provide notice at least to the person who might be affected.
The proposition can be tested this way, for example. The transparency implications of this type of process alone make it obvious that it cannot be a procedurally fair process. An essential part of any decision‑maker’s role is to be free from bias or connection between the parties or to have some sort of pre‑existing interest and that ultimately is something that any party or any person who is the subject of the decision of another is entitled to raise or to ask to be addressed.
How on earth could a person in this circumstance know or even contemplate raising such a fundamental proposition about whether or not the person who was conducting the review may have had an interest or may need to consider disqualification or anything of that nature. I am not suggesting, obviously, that in this case there could be any suggestion of that but the point is the point about testing what procedural fairness would require and an inherent element of procedural fairness is transparency. The
process that has been adopted in this case really runs entirely against that practice.
I am sorry, your Honours, I am just making sure that I have dealt with everything that I need to deal with. I should say that there is – my learned friend’s submissions and I know I have dealt with it already but there is one point I did not deal with. My learned friend’s submissions about onus and absence of evidence on the part of the respondent being a basis upon which this Court would interfere with a decision of the Full Court below should be rejected.
I have already told your Honours that the evidence is more than the affidavit but I should say as well that the inference which his Honour Justice Nicholas drew – I should just give your Honours a reference to it - was open. There was no foundation for suggesting that an inference drawn by the court below is something that should be interfered with in this Court. That inference ‑ ‑ ‑
BELL J: It is at 334, paragraph 49.
MR PRINCE: Thank you, your Honour. Your Honours, unless there is anything further I can assist with, those are my submissions.
KIEFEL J: Thank you, Mr Prince. Yes, Mr Johnson.
MR JOHNSON: Your Honours, a few points in reply. The first one will probably take up a little longer but not too long. It is necessary for me to say something as to the criticism that was made by Justice Nicholas of certain aspects of the reviewer’s reasons given the way in which that has been taken up by my friend to, in effect, demonstrate that there was some characteristic of the evidence before the second reviewer which required the second reviewer to have an interview to assess demeanour. My friend is critical of the rejection of room for confusion in the reasons of the reviewer.
Could I just say there is a short summary of our response to Justice Nicholas’ criticism in our reply at paragraph 21 so if your Honours are looking for a written note later, that is where it is to be found. But if I could be forgiven for just explaining this in somewhat more detail: firstly, if I could start with the reviewer’s reasons, just so that your Honours can see what happened. If your Honours go to page 22, paragraphs 80 and 81 - and I will read these paragraphs but I will not fully state the name.
KIEFEL J: I think we can read them, Mr Johnson.
MR JOHNSON: Thank you, your Honour. Your Honours will see that in paragraph 80 there is reference to certain evidence and in particular there is reference to this conflict as to whether or not the particular political candidate was standing for election in Colombo or in Jaffna. That is the applicant’s evidence in that respect. In paragraph 81, the reviewer says:
I do not accept that this kind of error was due to memory lapse or confusion, nor indeed to the effects of detention, as he has claimed from the beginning that he was supporting this candidate in the 2004 election in Jaffna. Furthermore, he consistently claimed that it was his support for [that person] that caused the [opponent] to abduct him, torture him and pursue him to this day and throughout his absence . . . I conclude that the claimant –
et cetera. So there are specific reasons why the reviewer simply does not accept that this kind of error was due to memory lapse or confusion or the effects of detention, and those matters relate to the consistency with which the 2004 claim, in effect, was put by the applicant and the importance of his support for that particular politician in the case that he was putting forward.
Now, my friend – Justice Nicholas said, well look, there was room for confusion but Justice Nicholas appears to have overlooked, or at least not referred to, all that the reviewer says there in paragraph 81. But moreover, with respect to the criticism that Justice Nicholas appeared to fasten upon and which my friend appears to fasten upon, to the effect that the applicant according to Justice Nicholas did at one point say that this particular candidate was running in Colombo, if I could just take your Honours to page 252, what happened was that whereas he initially said that, he then corrected it. So if your Honours go to 252 starting at line 14, the applicant is asked:
Which election campaigns did you support [the politician]?
A. INTERPRETER: During 2000 and 2001 I was helping him in his election campaign. In 2004 he did not seek election from my constituency. Rather, he was seeking election from a different constituency in Colombo.
That is the line that Justice Nicholas was fastening upon. That is the line that my friend is fastening upon. But then it goes on -
Q. So what did you do during the 2000 and 2001 campaigns?
Before answering that, the interpreter immediately corrects –
A. INTERPRETER: In 2006 not 2004 as was told before.
Q. You said 2004 though didn’t you? So not 2004, 2006?
INTERPRETER: 2006 he sought election from a different constituency in Colombo.
Then there is reference to him being supported in 2000 and 2001.
Q. Any other election campaigns?
A. INTERPRETER: In 2004 also I supported [the politician] . . .Q. So he was running ‑ he was contesting the seat in your area, is that right?
A. INTERPRETER: Yes.
So, the applicant was in fact correcting his own statement that the man had contested Colombo in 2004 and was asserting there that the man was contesting Jaffna in 2004 which is precisely how the reviewer understood the evidence.
KIEFEL J: But the point Justice Nicholas was making at appeal book 335, paragraph 50 was not so much about the process of reasoning by the reviewer. What was significant he said, was the:
findings related to matters upon which demeanour might reasonably be expected to have had some bearing ‑ ‑ ‑
MR JOHNSON: But, with respect, that is not enough. There will often be objective inconsistencies which a decision‑maker is happy to resolve without addressing matters such as demeanour. The other lines of evidence I was going to mention, I will just give your Honours the reference, is on 254, lines 13 to 22 but that is just confirmatory of the same point that I was just making.
The important point, matter of principle, that your Honour is raising is that if one is dealing with a case such as this where the matter is also capable of being dealt with simply by examining discrepancies and internal inconsistencies, and if that is what the reviewer does and if the reviewer finds those discrepancies and internal inconsistencies so significant, for the sort of reasons that he gave, that he sees no room for confusion, that does not turn the matter into a case where an oral hearing is required.
That case is one where the matter is in fact being resolved on discrepancies and internal inconsistencies, rather than the manner of giving evidence. There is no reason why, in those circumstances, an oral hearing would be required, or indeed why the applicant should be indicted to an oral hearing.
Similarly, there is no rule that an applicant must always be indicted to an oral hearing in circumstances where demeanour could play a part in the decision. Decision‑makers do not need to get into that territory, which is of course very often contentious anyway - lots of people who speak of the inherent unreliability of attaching too much importance to the way in which people given evidence. So, just in summary, we say that this was not a case where a hearing was necessary, and we repeat the propositions that are summarised in paragraph 17 of the outline of propositions.
Your Honours, we do not accept that it is extraordinary that a person who conducts an interview might then become unavailable and, as we have submitted, there is nothing which would then oblige, as a matter of principle, a further hearing to be conducted by someone else.
With respect to any lost opportunity to impress the first reviewer who became unavailable, well, any subjective impression that person could have formed obviously disappeared with that person becoming unavailable. But whether or not knowledge of that person becoming unavailable would then have sounded in the applicant wishing to try to positively impress somebody else is really a matter of evidence and, again, with respect to that last part of my friend’s submission, we come back to the problem that there is simply no evidence of what the applicant would have done in that respect had he have known of the change of composition.
Finally, with respect to transparency, the issue is one of procedural fairness. Procedural fairness does not require a decision‑maker to engage in some practice where he or she reveals to an applicant all of the procedures that he is going to follow or she is going to follow. If the – absent statutory prescription, it is for the decision‑maker to decide what procedure is to be adopted.
At the end of the day, of course, the decision‑maker is accountable if objectively there is procedural unfairness in that procedure. There ought not be found procedural unfairness if, in fact, there is not demonstrated by the applicant to be practical injustice. If your Honours please, those are the appellant’s submissions.
KIEFEL J: Thank you, Mr Johnson. The Court adjourns until 9.30 am tomorrow in Melbourne and 9.30 am tomorrow in Sydney.
AT 12.03 PM THE MATTER WAS ADOURNED