NADH & Ors v MIMIA

The applicants, NADH and others, sought judicial review of a decision by the Minister for Immigration and Multicultural and Indigenous Affairs (MIMIA) to refuse their applications for protection visas. The applicants were citizens of Afghanistan who had arrived in Australia by boat. The Minister had refused their applications on the basis that they were not persons to whom Australia had protection obligations under the *Migration Act 1958* (Cth).

The central legal issue before the High Court was whether the Minister's decision was vitiated by a failure to afford the applicants procedural fairness. Specifically, the applicants contended that the Minister had failed to provide them with adequate notice of the adverse information that formed the basis of the refusal decision, and that they were not given a reasonable opportunity to respond to that information. The applicants argued that this failure constituted a breach of the implied duty of procedural fairness owed to them under the *Migration Act*.

The High Court considered the principles of procedural fairness in the context of administrative decision-making, particularly concerning the provision of adverse information. Their Honours affirmed that where an administrative decision-maker proposes to make a decision adverse to a party based on information that has not been disclosed to that party, procedural fairness generally requires that the party be given notice of the information and an opportunity to comment on it. In this instance, the Court found that the Minister had relied on certain adverse information that had not been adequately disclosed to the applicants, nor had they been given a sufficient opportunity to respond to it. Consequently, the decision-making process was found to be flawed.

The High Court allowed the appeal, quashed the Minister's decision, and remitted the applications for protection visas to the Minister for reconsideration according to law.