Minister for Immigration and Border Protection v WZARH

The Minister for Immigration and Border Protection appealed to the High Court of Australia against a decision of the Full Federal Court concerning the procedural fairness afforded to the first respondent, WZARH, during a refugee status assessment. The dispute centred on the Independent Merits Review (IMR) process, where the first respondent was interviewed by one reviewer but the final decision was made by a second reviewer who had not personally conducted an interview.

The High Court was required to determine whether WZARH was denied procedural fairness. Specifically, the Court considered whether the failure to inform WZARH of the change in reviewer, and the second reviewer's reliance on the transcript and audio recording of the initial interview without conducting a fresh oral hearing, constituted a breach of the duty to provide procedural fairness. The Court also examined whether the second reviewer's adverse assessment of WZARH's credibility, based on the existing material, was permissible in the absence of a further interview.

The High Court held that procedural fairness required that WZARH be given an opportunity to be heard by the ultimate decision-maker, or at least be informed of the change in reviewer and given an opportunity to make further submissions. The Court reasoned that the second reviewer's adverse credibility findings, formed without a fresh interview and without WZARH being aware of the change in reviewer, meant that WZARH had not been afforded a proper opportunity to present their case to the decision-maker. The principles of procedural fairness, including the right to be heard and the legitimate expectation of a fair hearing, were engaged.

The appeal was dismissed with costs.