SZRCI v Minister for Immigration and Citizenship (No 2)

In SZRCI v Minister for Immigration and Citizenship (No 2), the Appellant, a Sri Lankan asylum seeker, challenged the decision of the Minister for Immigration and Citizenship, represented by the First Respondent, to refuse his application for a protection visa. The Appellant argued that he was denied procedural fairness because the decision-maker, Dr Witton, did not disclose a Departmental advice dated 15 December 2011, which the Appellant claimed was the basis for Dr Witton’s adverse recommendation. The Appellant contended that the failure to disclose this advice breached the hearing rule, which requires decision-makers to give affected parties an opportunity to respond to material that is relied upon in making a decision. The Appellant further argued that the non-disclosure of this advice should lead to the adverse recommendation being set aside.

The legal issues before the court included whether Dr Witton had access to and relied upon the Departmental advice when making his recommendation, whether the Appellant was denied procedural fairness by the non-disclosure of this advice, and whether additional evidence could be considered in the judicial review application. The court considered that ordinarily only evidence before the decision-maker should be considered in a judicial review application. However, the court recognised that additional evidence may be admissible in limited circumstances, such as where it is necessary to determine whether there has been a denial of an opportunity to be heard or actual or apprehended bias. The court also had to determine whether the Appellant had discharged the onus of proving a breach of procedural fairness.

The court found that the Appellant had not discharged the onus of proving that he was denied procedural fairness. Although it was unclear whether Dr Witton had access to the Departmental advice when making his recommendation, the court concluded that the Appellant was not prejudiced by the non-disclosure of the advice. This was because the Appellant was given an opportunity to comment on the substance of the findings of Dr Witton during the interview. The court also noted that the Appellant was not prejudiced by being denied an opportunity to comment upon the only part of the advice that may have been relevant. As a result, the court dismissed the appeal and ordered that the Appellant pay the costs of the First Respondent.