Wu Yu Fang & Ors v Minister for Immigration and Ethnic Affairs

The applicants, Wu Yu Fang and 117 others, sought special leave to appeal to the High Court of Australia from a decision of the Full Federal Court. The dispute concerned whether the Minister for Immigration and Ethnic Affairs, and by extension the Department, owed a duty of procedural fairness to the applicants in relation to their applications for protection visas. The applicants contended that this duty was breached by the failure to provide them with the necessary application form (Form 866) and to inform them of their right to legal assistance under the Migration Act 1958 (Cth).

The central legal issues before the High Court were whether sections 193 and 198 of the Migration Act negated any duty of procedural fairness owed to the applicants, and whether such a duty could arise independently of a specific decision-making process under the Act. The applicants argued that a free-standing duty of procedural fairness existed, or alternatively, that decisions were made to which such a duty attached, specifically the decisions not to provide them with Form 866 and not to inform them of their right to legal assistance. The applicants sought to frame these failures as reviewable administrative decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Federal Court Act 1976 (Cth).

The applicants' submissions focused on the argument that they had met the criteria under section 36(2) of the Migration Act, thereby engaging Australia's protection obligations. They contended that this engagement created an obligation on the Department to provide the means to make a formal application, including Form 866, and to inform them of their rights to legal assistance. This obligation, they argued, was a matter of procedural fairness, and the failure to fulfil it constituted a reviewable decision. The respondents, however, argued that the obligation to accord natural justice only arises in a decision-making context and that no such decision had been identified or challenged by the applicants. They further submitted that the applicants' application was not brought under the Judicial Review Act, but rather under other provisions of the Federal Court Act and the Migration Act, and that no decisions were challenged, with relief sought by way of declarations unrelated to specific decisions.

The High Court granted special leave to appeal. The Court noted the importance of the issue regarding the entitlement to and availability of legal advice in migration law. However, the Court expressed reservations about whether the case, as pleaded and with the existing findings of fact, was the most appropriate vehicle for resolving the fundamental question of whether a free-standing duty of procedural fairness could be implied from the Migration Act, particularly given the potential for pleading points and lack of clear factual findings.