Minister for Immigration and Border Protection v WZARH & Anor

[2015] HCATrans 92

[2015] HCATrans 092

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S285 of 2014

B e t w e e n -

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Applicant

and

WZARH

First Respondent

ADOLFO GENTILE IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

Second Respondent

Application for special leave to appeal

HAYNE J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 APRIL 2015, AT 10.04 AM

Copyright in the High Court of Australia

MR G.T. JOHNSON, SC:   I appear with my learned friend, MR B.D. KAPLAN, for the applicant.  (instructed by Sparke Helmore Lawyers)

MR S.E.J. PRINCE:   I appear with my learned friend, MR P.W. BODISCO, for the first respondent. (instructed by Thomas McLoughlin Solicitor)

HAYNE J:   There is a submitting appearance on behalf of the second respondent, I believe, is there not?

MR PRINCE:   Yes, there is.

HAYNE J:   Yes, Mr Johnson.

MR JOHNSON:   Yes, thank you, your Honour.  Your Honours, firstly, I need at the outset to seek the order sought in prayer for relief 1, namely, that compliance with rule 41.02.1 be dispensed with.  That was because the application was filed one day late and there is an affidavit from my instructing solicitor in the application book which goes to that.

HAYNE J:   Yes.  Mr Prince, what is the ‑ ‑ ‑

MR PRINCE:   Not opposed.

HAYNE J:   Not opposed?  Very well, you may have the time you seek, Mr Johnson.

MR JOHNSON:   Thank you, your Honour.  The special leave question in this particular case really relates to whether or not there will be a breach of procedural fairness simply because a procedure is adapted or adopted which is different from and inferior to, in the eyes of the Court, a legitimate expectation.  What we say – and we say it is really settled since Lam – is that the breach of what might be called a legitimate expectation or the disappointment of a legitimate expectation will not of itself suffice.  One needs to show ‑ ‑ ‑

HAYNE J:  You make these submissions on the footing that the expression “legitimate expectation” has an identified and fixed content with which we are deeply familiar.

MR JOHNSON:  Yes. We are mindful of the criticism of the expression but even accepting for the moment that there might be a set of circumstances as a result of which somebody might reasonably expect that a particular procedure will be followed the disappointment of that expectation is not enough to sound in procedural fairness unless some actual unfairness is demonstrated.  That is really what I mean, your Honour. 

We are very mindful – and indeed we have referred in written submissions to the criticism of the expression “legitimate expectation” and whether it is meaningful.  But it is to be found in such cases as Lam and also in a slightly different context in the joint judgment in which your Honour Justice Hayne participated in Plaintiff S10/2011 v The Minister which we quote from in paragraph 27.

Your Honours, the Full Federal Court, and particularly the plurality in the Full Federal Court, identified the prejudice or practical injustice insofar as they attempted to identify those things as being the change in the administrative process that was expected, in effect, the defeat of a legitimate expectation.  What we say is that Lam would require more, that it would require some unfairness or practical injustice to be suffered and it does not follow, as night the day, that there is unfairness or practical injustice simply because some different procedure from that expected has been adopted, even if the court finds it to be different or different from or inferior to what was expected.

GAGELER J:   Mr Johnson, if the applicant had produced some evidence which would have said, “Well, I didn’t know about this change in procedure, but if I’d been told that the procedure might change I would have asked that it stay the same or I would have asked for a further hearing before the new reviewer”, would that be sufficient practical injustice?

MR JOHNSON:   In my submission, no, your Honour, because it would still be necessary to show that what the applicant had been afforded was in fact unfair.  Justice Nicholas, even though he referred to a lack of evidence, was prepared to infer that the applicant would have sought to be heard before the new reviewer personally had he known that a new reviewer was appointed.   But what we say, your Honour, is that, even if one fully assumes each element of the legitimate expectation found by the Full Court, mere disappointment of that is not of itself enough. 

GAGELER J:   But loss of an opportunity to make a submission you say is not a practical injustice?

MR JOHNSON:   It is not a practical injustice or a procedural unfairness in the requisite sense if what has already been provided is nonetheless fair, procedurally fair.  The fact that somebody ‑ ‑ ‑

HAYNE J:   Well, I think that proposition you have just advanced has the delightful symmetry of circularity, Mr Johnson.  There is no unfairness if what is done is fair.  I think we can go with you that far.  But if somebody is denied an opportunity to make a submission is there not then a denial of opportunity of being heard?

MR JOHNSON:   But, your Honour, there is, with respect, a circularity because that assumes a right to be heard in the first place, and one of the submissions that we have ‑ ‑ ‑

HAYNE J:   Does the Minister say there is no right to be heard?

MR JOHNSON:   We say there was no right to an oral hearing in the circumstances of the case and one of the difficulties with this judgment is that the Full Court did not address whether there was a need for an oral hearing in the first place.  The Full Court found that it was unnecessary to answer that question, particularly at paragraph 8 in the plurality’s judgment and in paragraph 48 of Justice Nicholas’ judgment.

HAYNE J:   Paragraph 8 is talking in generalities, whether:

all persons in the position of the Appellant would be entitled to an oral hearing –

The question must be I think a little more particular, must it not, whether this applicant was entitled?

MR JOHNSON:   Well, that is correct, but the Full Court did not at any point confront whether, absent what it described as the legitimate expectation, the applicant was entitled to an oral hearing.

HAYNE J:   But would the Minister seek to say that this applicant was not entitled to any oral hearing?

MR JOHNSON:   Yes, not because of what we are accused of, namely, some intractable proposition that an applicant is never entitled to an oral hearing, but rather because there was no particular circumstance here that would warrant one.  For example, if the decision was to depend upon matters of demeanour, well, then an oral hearing might have been required. 

HAYNE J:   How do you determine that without first having your hearing?

MR JOHNSON:   Well, it is common of course for administrative decisions to be made without there being an oral hearing and we have referred in that respect to some cases to that effect, including Chen v The Minister, but it is for the applicant to demonstrate that in the circumstances of the case an oral hearing was in fact required.  If there has not in fact been an oral hearing, then those circumstances need to be demonstrated with what is in evidence.

As I indicated, there might be, for instance, a situation where the decision‑maker is unable to resolve what is before him without an assessment of demeanour, but in this case, in our submission, there was nothing which raised an entitlement to an oral hearing.  Certainly the decision that was made by the reviewer depended upon an objective comparison of statements leading to findings of inconsistency.  They were not findings of credibility which depended upon matters of demeanour.

GAGELER J:   But Mr Johnson, could not demeanour have worked the other way?

MR JOHNSON:   Well, this is a point, your Honour, which was made by the Full Court, and what we say in that respect is that the reasoning that the result may have been different is not itself sufficient to supply the conclusion that there was a breach of procedural fairness.  Just to explain that ‑ ‑ ‑

GAGELER J:   You do not have to explain that proposition.

MR JOHNSON:   No.

GAGELER J:   But the – go ahead.

MR JOHNSON:   Well, with respect, it does seem to be very much a – the Full Court referred, as your Honours will have observed, to this Court’s decision in Stead and Stead was a case where – I am referring to paragraph 28 of the plurality’s decision – and Stead was a case where there had been a breach of procedural fairness and the question arose as to whether or not there should be a discretionary refusal of relief, and it was in that context that it was concluded in Stead that relief would follow if the breach could have made a difference.

But the fact that a different result might have ensued if another mind entirely came to look at the facts from the one who initially conducted the hearing does not itself mean that what did happen was unfair.  It is one thing to say that someone who has established a breach of procedural fairness should not be denied relief unless it can be said that it could not have affected the result.  It is quite a different thing to say that if something happens which could affect the result, well, then that is a breach of procedural fairness.

HAYNE J:   Mr Johnson, the Minister, as I understand it, would pay the costs of the respondent in any event in this Court?

MR JOHNSON:   That is correct, your Honour, yes.

HAYNE J:   And not disturb the ‑ ‑ ‑

MR JOHNSON:   And not disturb the orders for costs made below.

HAYNE J:   Yes.

MR JOHNSON:   Thank you, your Honours.

HAYNE J:   Yes, Mr Prince

MR PRINCE:   Thank you, your Honours.  My friend’s issue of principle as it is put does not arise in this case and this is certainly not an appropriate vehicle for it because it simply does not emerge from the reasons of either the plurality or Justice Nicholas in the Full Court below.  Their Honours were at great pains to make it clear that they were not establishing any general principle that there needed to be an oral hearing.  They were not establishing any general principle that a person who has had a representation made to them from which departure has occurred would be entitled to some judicial review relief.

Their Honours were plainly looking at questions of legitimate expectations, as unfortunate as that might – or unfashionable as that expression might have become – through the rubric of the normal doctrine of procedural fairness about which there are no fixed rules, as it is well established, and that their Honours were simply using that expression in relation to one aspect of the inquiry about what in truth was a very pedestrian approach to procedural fairness by looking at what procedure was put in place in the first place, was there some departure from it or was there some change to it, did that change result in an unfairness to the applicant in the particular – or the appellant in the particular circumstances and, if so, is there a practical injustice that requires the granting of some relief?

Their Honours in the plurality, and his Honour Justice Nicholas more particularly, engaged in that orthodox process of reasoning without regard to establishing any widespread principle.  Indeed, my friend ‑ ‑ ‑

HAYNE J:   Would you seek to support the reasoning founded in legitimate expectation?

MR PRINCE:   Not as an independent basis for judicial review, and I think that is where the difficulty with Teoh has consistently been, that is, the Court in Lam was particularly concerned to make it clear that no new doctrine of judicial review was being established.  That is, there had been some view about after Teoh that Teoh set up some new doctrine that needed to be looked at in addition to the other doctrines of administrative law which lead into the prerogative – into the constitutional writs. 

But what Lam was about was that legitimate expectations is really just a form of procedural fairness in the sense that, if a particular procedure is put in place by an administrator and then it is departed from, that can give rise to circumstances of a denial of procedural fairness depending on all of the circumstances of the case.  But no one has put forward, least of all the Full Court of the Federal Court in this case, that there is some doctrine that where a promise is made and departed from, the writs will go.  That is simply not part of their Honours’ reasoning.

That is why their Honours were concerned to look at issues of practical injustice and what had been denied to the applicant and, indeed, why Justice Nicholas made the inference of fact which his Honour did about – to close the loop, as it were, on what the appellant would have been able to do in the circumstances.  That, in my submission, is consistent with an approach to what was termed “legitimate expectations” through a rubric or really as a part of issues of procedural fairness.

Can I give your Honours just a quick reference to where that is plain in the plurality’s reasons?  It is plain at page 65 in paragraph 16 that their Honours are concerned with having been “given a ‘fair’ opportunity to be heard”.  Then at point 50 on page 65 their Honours note the caution that has been directed to the term “legitimate expectations” in Lam and those passages make it clear that what their Honours were doing was looking at the expectations that might have been created by the representation about the administrative procedure through the rubric of whether or not procedural fairness in the particular circumstances was going to apply. 

So that whatever might be a potential area of academic interest about the extent of “legitimate expectations” as an expression to be used by courts, in my submission it does not arise in this case because it is plain that their Honours in the Full Court were using it in the correct sense, that is, only as a step in a process for ascertaining whether or not there had been a particular denial of procedural fairness in this case.

Their Honours in the plurality at pages 68 to 69 of the book engaged in a careful analysis of the particular circumstances of this particular case, which it must be said were quite extraordinary, where the first reviewer said, “I will review your claims and I will give you a hearing and this is your chance to tell me your side of the story and I will make a fresh assessment and then I will make a recommendation to the Minister”.  The use of the personal pronoun was not an accident.  It was clear from the context of that hearing that this was the person charged with making the representation and she thought it was necessary to give the person an opportunity to be heard, and that is what she was doing. 

That is what the applicant was led to expect in plain terms and indeed the applicant subsequently after the hearing sent in further information addressed to that particular person.  Notwithstanding that information was sent in clearly at a time that the file had been passed to the second reviewer, no one took the trouble to let the applicant know that the reviewer to whom he was writing was no longer the reviewer who would make the recommendation. 

There is a complete lack of transparency.  It is an unusual case very much determining on its facts and it would have been extremely easy for the Minister to have acted in a fair way in this case, at the very least, as his Honour Justice Nicholas set out, by letting the applicant know that there had been a change in the procedure and inviting the applicant to make any submissions he wanted to about what the consequence of that change in procedure might be for him.

GAGELER J:   As I read the judgment of Justice Flick and Justice Gleeson, that is the alternative basis of their holding in paragraph 24, but the primary basis of their holding, at least on one reading of the first two sentences at paragraph 24, is that if an applicant is told or led to believe that a particular reviewer is conducting a hearing in their case, then there is a breach of procedural fairness if that reviewer does not complete the hearing process and determination process.

MR PRINCE:   Well, the Minister puts it that highly because of the use of the indefinite article, I expect, in paragraph 24.  But that is really straying into Wu Shan Liang‑type analysis because if your Honours read what follows immediately at about point 30 on the page, their Honours say:

In this case, that involved an oral hearing by the Independent Merits Reviewer who made the adverse recommendation to the Minister.  If for whatever reason a person an Independent Merits Review becomes unavailable, a claimant is at the very least entitled to be heard –

That is, in this particular case, the first reviewer had gone to the trouble of conducting a hearing and that rather answers the proposition that this is a case in which there would have been no requirement for an oral hearing because the circularity in my friend’s submission on that point is that he is using the fact that the first reviewer held an oral hearing to suggest that this is not a case that required an oral hearing. 

The oral hearing before the first reviewer is irrelevant to the issue of the constitutional writs because it is the second reviewer who makes the recommendation.  It is the second reviewer who engages in a report which is adverse to the interests of the first respondent, and it is that person to whom the respondent never had any opportunity to make submissions, let alone an oral hearing.  The first respondent did not even know that the second reviewer existed.  So there was no engagement whatsoever between the person who was making the recommendation and the person about whom the recommendation was being made at any level, let aside an oral hearing.

So, in these extraordinary circumstances, in my submission, there is no occasion for revisiting any of the settled principles which my friend accepts are settled principles, in any event, and do not require revisitation principles in Lam.  There is nothing about Plaintiff S10 that revisits the aspects of Lam which were referred to and relied upon, and the cautions which were observed by the plurality in its decision, and this is not a matter appropriate for this Court to refer to a Full Court.

HAYNE J:   Thank you, Mr Prince.  Yes, Mr Johnson.

MR JOHNSON:   Your Honours, it is the inconsistency of this judgment with Lam that the applicant in this application complaints of.  Although in this particular case it was acknowledged, particularly by the plurality at 25, that Lam had included statements to the effect that what has to be demonstrated is unfairness, not merely departure from a representation, even though the Full Court acknowledged that, ultimately all that they relied upon was the departure from the representation or expectation that they found to be generated.

To single out perhaps two sentences in that respect to reinforce the point, if your Honours go to paragraph 25 which starts off with that acknowledgement to which I have referred, there is a finding in the last sentence that what had happened:

was unfair because the Appellant received a different and inferior review from the review that he had been led to expect would be conducted.

Similarly, in paragraph 27 in the course of attempting to point to some prejudice as a result of the departure, the plurality said from about line 20 that the:

prejudice is exposed by the very fact that those administering the review process did not do what they had said they would.

So it is the departure from the expectation which is ultimately relied upon.  With respect to any alternative basis, the Full Court, with respect, begged the question of whether what had happened was already such as to afford procedural fairness and a part of that was not deciding whether there was an entitlement to an oral hearing in the first place.  The Full Court would have made the same decision based upon the breach of the expectation or the disappointment of the expectation regardless of whether there was such an entitlement in the first place.

Your Honours, what we say is that the case does therefore have a sufficient public interest about it and importance about it to warrant the grant of special leave.  It is not consistent with Lam.  It tends to equate a different procedure or an inferior procedure with one which was necessarily unfair and it is capable of applying quite widely where there is a duty to give natural justice.  It is not particularly limited to this context.  It truly does give legitimate expectation or breach of legitimate expectation a new life which is somewhat beyond what Lam envisaged.  Those are our submission, if the Court pleases.

HAYNE J:   Thank you, Mr Johnson.

There will be a grant of special leave in this matter on the terms to which the Minister has agreed.  Do counsel agree that this is a one‑day case?

MR JOHNSON:   Yes, your Honour.

HAYNE J:   Counsel, or those instructing them, will be provided with the directions for the filing of submissions.  Those instructing them and counsel will note the minatory terms in which those directions are expressed and the requirement that the timetable be complied with.

The Court will adjourn to reconstitute.

AT 10.34 AM THE MATTER WAS CONCLUDED