Zi, C.Z. v Minister for Immigration & Ethnic Affairs

[1994] FCA 145

CHEN ZHEN ZI AND ORS v. MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No. WAG142 of 1993
FED No. 145/94
Number of pages - 13
Administrative Law - Practice And Procedure
(1994) 121 ALR 83
(1994) 48 FCR 591
(1994) 33 ALD 441

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
BLACK CJ, LEE AND HEEREY JJ

CATCHWORDS

Administrative Law - judicial review - natural justice - requirement of oral hearing - applications for refugee status - administrative review of refusal - procedure - whether oral hearings required in every case - content of rules of natural justice - variability of rules given particular circumstances.

Practice And Procedure - representative proceedings - definition of "group" - diversity of circumstances of each group member

Federal Court of Australia Act 1976 (Cth) Part IVA

Migration Act 1958 (Cth), Part 4A Division 9

Migration (1993) Regulations

Annetts v McCann (1990) 170 CLR 596

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Brunskill v Sovereign Marine and General Insurance Co Limited (1985) 62 ALR 53

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Re Conway (1992) 86 DLR (4th) 655

Council of Civil Service Unions v Minister for The Civil Service (1985) AC 374

Goldberg v Kelly 397 US 254 (1970)

Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487

Local Government Board v Arlidge (1915) AC 120

Matthews v Eldridge 424 US 319 (1976)

National Companies and Securities Commission v New Corporation Limited (1984) 156 CLR 296

Russell v Duke of Norfolk (1949) 1 All ER 109

R v Commonwealth Conciliation and Arbitration Commission; ex parte The Angliss Group (1969) 122 CLR 546

R v Secretary of State for the Home Department; ex parte Sivakumaran (1988) AC 958

Salemi v MacKellar (No.2) (1977) 137 CLR 396

Re Singh and the Minister of Employment and Immigration (1985) 17 DLR (4th) 422

Chen Zhen Zi and Ors v Minister for Immigration and Ethnic Affairs

HEARING

PERTH, 13 December 1993
#DATE 25:3:1994

Counsel for the applicants: Mr J Bailey

Solicitor for the applicants: Chua Tan and Associates

Counsel for the respondent: Mr S Owen-Conway QC with

Mr P R MacLiver

Solicitor for the respondent: Australian Government Solicitor

ORDER

The Courts Orders that:

1. The appeal is dismissed.

2. The appellants pay the respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

JUDGE1

BLACK CJ, LEE AND HEEREY JJ This appeal raises the question whether the rules of natural justice entitled applicants for refugee status seeking departmental review of an initially adverse decision to an oral hearing by the decision-maker in every case. For reasons which will shortly emerge, the Court is only concerned with applicants whose applications for review were refused between 4 March 1992 and 30 June 1993.

1. The appellants' right to bring this appeal arises under the representative proceedings provisions introduced by Part IVA of the Federal Court of Australia Act 1976 (FCA). The present appellants are members of the group represented by Zhang de Yong who brought application No. WAG 215 of 1992 against the Minister. French J delivered judgment dismissing that application on 6 October 1993. The present appellants did not opt out of the Zhang proceeding (see FCA s.33J). They are entitled to appeal under FCA s.33ZC(6).

2. An application for an order redefining the represented group was made to us at the outset of the hearing of the appeal. We granted the order sought. It is not necessary to canvass the reasons for this, save to say that they arose from the concern of the respondent that no eligible persons should be overlooked. As a result of our order the group is now defined as
   

"persons who have sought determinations of their status as refugees pursuant to the Migration Act 1958 and whose applications have been refused and who have sought review by the respondent of the decision to refuse their applications and who have between 4 March 1992 and 30 June 1993 again been refused."

1. The opening date of that period arises from the commencement of Part IVA on 5 March 1992 and the conclusion from the establishment, since 1 July 1993, of the Refugee Review Tribunal under Part 4A Division 9 of the Migration Act 1958 (MA).

2. We shall first examine the statutory context in which the applications for refugee status were made and then the evidence as found by his Honour as to the administrative procedures adopted from time to time by the respondent.

Statutory Framework
6. The following description of the statutory framework comes from his Honour's judgment (at 9).

"The provisions of the Migration Act 1958 (Cth) governing the determination of refugee status are to be found in Division 1AA which was inserted in the Act by Act No. 84 of

1992. Section 22AA is the locus of the relevant statutory power:

'22AA. If the Minister is satisfied that a person is a refugee, the Minister may determine, in writing, that the person is a refugee.'

By s.4 the Act adopts the definition of 'refugee' which appears in Article 1 of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol. The procedure for determination of refugee status is prescribed in the Regulations and provisions for such prescription is made in s.22AB:

'22AB(1) The regulations may:

(a) provide that a person may apply for a determination under section 22AA that he or she is a refugee; and

(b) prescribe procedures for the consideration of such an application.

(2) Without limiting subsection (1), the regulations may:

(a) provide for the applications to be made in an approved form; or

(b) prescribe time limits relating to the application.' Only persons who are in Australia can be determined to be refugees. In this respect s.22AC provides: '22AC. This Division does not:

(a) entitle a person who is outside Australia to apply for a determination that he or she is a refugee; or

(b) authorise a determination that a person who is outside Australia is a refugee.'

Section 22AD relieves the Minister of any obligation to consider an application in circumstances which are not material for present purposes. It also provides that applications may be considered and disposed of in such order as the Minister considers appropriate.

Internal review of certain decisions is provided for in s.115 of the Act which authorises regulations relating to the review of ministerial decisions, officers to conduct such reviews, the manner and form of applications for such reviews and the persons who may apply for such reviews. It is not disputed that prior to 1 February 1993, neither the Act nor the Regulations made any explicit provision for review of decisions refusing refugee status. Since 1 February 1993, the Migration (1993) Regulations have provided a right of review to the Minister from decisions refusing refugee status."

Departmental Practices and Procedures
7. His Honour found that since 1990 there had been a rapid increase in the number of refugee status applications received by the Department. This increase significantly extended the average processing time and particularly the time between the lodgement of an application and the commencement of assessment. As a consequence decisions fell behind the number of applications:

1989 1990 1991 Applications 1,148 11,335 12,809 Decisions 3,397 292 1,698

1. The process operated in two stages, primary decision-making and review. Where an application was refused at the primary stage an applicant had the right to have the decision reviewed administratively by a body called the Refugee Status Review Committee (RSRC). The RSRC made a recommendation which was considered by another delegate of the Minister who made a fresh decision whether or not to grant refugee status. Up until 18 May 1992 the primary decision-making stage involved "streaming", that is to say preliminary evaluation of the strength of each application. If the application was believed to have merit, it was "streamed in" and a green dot attached to the file. This meant that an interview would usually be conducted. On the other hand if an application was considered to be manifestly unfounded it would be "streamed out" and an orange dot attached indicating that an interview was not merited. These initial designations were not regarded as binding on the officer who decided the case. After an interview, or a decision that an interview was not necessary, a delegate could approve the application. If the officer considered the application should not be approved, a draft assessment, including the reasoning and information being relied on by the decision-maker, would be sent to the applicant for comment. After consideration of any further material supplied by the applicant, or any changed circumstances in the country of origin, a determination was made. Unsuccessful applicants were advised of the decision, the information and reasoning supporting it, and the right of review by the RSRC.

2. After 18 May 1992 new procedures were adopted for the primary decision-making stage. These resulted in all applicants except "the clearly unfounded or abusive" being interviewed. "Abusive" is a somewhat misleading term of art which apparently refers to patent non-compliance with formal requirements and not with insulting or offensive conduct by applicants. The stricter requirement for refusing interview resulted in a much larger portion of applicants being offered interviews. The separate steaming process was discontinued.

3. The procedure for review of primary decisions refusing refugee status applications remained largely unchanged throughout the relevant period. All persons whose applications were refused were given the right to seek review of the primary decision by the RSRC. Each such committee was chaired by a representative from the Department and included representatives from the Attorney-General's Department, the Department of Foreign Affairs and Trade as well as a community representative nominated by the Refugee Council of Australia. A representative of the Office of the United Nations High Commissioner for Refugees attended committee meetings as an observer.

4. After the RSRC's consideration and recommendation the matter would go to a delegate of the Minister for the final review decision. During the period with which we are concerned there were two Ministerial Guidelines concerning the review of primary decisions refusing refugee status. Both guidelines stated that the RSRC would not take oral evidence from applicants or their representatives. The presently relevant procedure of the RSRC was described in evidence in the following terms (at 24):
   

"The Ministerial Guidelines do not envisage applicants being afforded the opportunity for an oral hearing before the RSRC. Rather the RSRC operates by evaluating each case on the papers and taking into account any new claims, argument or information advanced in the application for review. Where RSRC members consider that further information is required, either through interview or other enquiry, they can either give the applicant the benefit of the doubt and vote in favour of refugee status, abstain from voting or argue the case in committee for obtaining such information. Where the RSRC recommends against grant of refugee status or the delegate is minded to refuse refugee status, the reasons and information on which the RSRC's recommendation and the delegate's inclination to refuse are disclosed to the applicant in writing and comment is invited."

1. At the conclusion of the period for comment, the application, the assessment and recommendation of the RSRC and any response from the applicant would be considered by a delegate who was a different person from the one who made the decision under review. The review delegates regarded it as open to them to seek any further information they considered necessary, including personal interviews of the applicant, although this would only have been in exceptional cases.

2. His Honour accepted the following evidence from Mr Robert Illingworth, Director of the Planning and Resources Section of the Determination of Refugee Status Program Support Branch of the Onshore Refugee Division of the Department. The evidence was not disputed. Mr Illingworth said that from his own experience he knew that applications at the review decision stage had already had a number of opportunities to advance and clarify claims and to respond to relevant information, both in writing and often orally at interviews. The assessment of their cases had been scrutinised at several stages by different individuals in the progression of their application through the primary and review stages. In addition where an applicant was interviewed at the primary stage the tape recording of the interview was kept on the applicant's file and was available to the delegate when making his review decision. In one case, the RSRC considered that fine judgment was necessary about an applicant's credibility and asked that the delegate rather than a case officer undertake an interview. This was done. There had been some 40 cases where interviews had been held at the review stage, either at the recommendation of the RSRC or on the sole judgment of the delegate. In each of those cases the interview was conducted by an officer other than the delegate who made the review decision. There was no guideline or instruction which prevented a review delegate from personally conducting an interview with an applicant where it was considered that an interview at the review stage should take place. Mr Illingworth said it was a matter of discretion for the delegate making the review decision. His Honour commented that, on the evidence, it was clear that the discretion was not often exercised in favour of an interview at that stage.

Representative Proceedings under FCA Part IVA
14. The applicability of FCA Part IVA was challenged by the respondent before his Honour but not before us. His Honour reviewed in what we would respectfully suggest is a most helpful way the background of Part IVA and its features when compared with previous representative procedures. Because the matter was not argued on appeal, it is not necessary to do any more than to restate his Honour's conclusion (at 37), with which we would agree:

"In the present case, the relationship between the circumstances of each group member is defined by a few common integers which leaves room for considerable diversity in circumstances which might support individual claims to set aside the review decisions. Some applicants may have complaints about aspects of the decision-making process which having nothing to do with the question whether or not they should be afforded an oral hearing. There may be applicants who are able to show that even if there is no common entitlement to the opportunity of an oral hearing, the particular circumstances of their case require such a hearing as a matter of natural justice. Notwithstanding that possibility, I am satisfied that the claims of the members of the group as defined in the present application are connected by circumstances sufficiently related to warrant the use of the procedure under Part IVA for the termination of the common issue of law defined in the application. In so holding, I have regard to the need for a purposive approach to the construction of s.33(c)(i)(b) bearing in mind the utility of determining the common issue of law defined in this way. If the application were to succeed, all group members would be entitled to the offer of an oral hearing by the decision-maker. In that event, other aspects of individual claims to which I have referred might not be pursued. If the application fails, then a principle applicable to each group member would be established, namely that there is no entitlement in any member of the group to an oral hearing by reason only of the fact that the member is an applicant for administrative review of the refusal to grant refugee status."

Application of the Rules of Natural Justice
15. It was not in dispute before his Honour or before us, that the rules of natural justice applied to the determination of refugee status at both the primary and review stages. It was also accepted that the content of the rules of natural justice is variable and will depend upon the circumstances of the case, including the nature of the enquiry, the legislation under which the decision-maker is acting and the subject matter that is to be dealt with: Russell v Duke of Norfolk (1949) 1 All ER 109 at 118; R v Commonwealth Conciliation and Arbitration Commission; ex parte The Angliss Group (1969) 122 CLR 546 at 552-553; Salemi v MacKellar (No.2) (1977) 137 CLR 396 at 444; National Companies and Securities Commission v New Corporation Limited (1984) 156 CLR 296 at 314-316, 319-320, 326; Kioa v West (1985) 159 CLR 550 at 584.

1. It is now recognised that there is a duty at common law to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the exclusion of that duty by a clear (one might almost say very clear) manifestation of a contrary legislative intention: see Annetts v McCann (1990) 170 CLR 596 at 598-599 per Mason CJ, Deane and McHugh JJ; cf the opposing view of Brennan J (at 604-607) that the law governing the extent and existence of the power must be found in the statutory provisions that create that power. In the light of this now-established conceptual basis of the duty to act fairly it is clear that matters occurring after the enactment of the empowering statute, such as the giving of assurances by the decision-maker, or the adoption of administrative rules or practices, may shape the content of the duty to give natural justice in a particular case: see Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374 at 401; Attorney General (NSW) v Quinn (1990) 170 CLR 1 at 20. Thus, a mandatory rule for an oral hearing by the decision-maker in all cases may, apart from anything else, be unnecessary given the capacity of the law to require such a hearing in a particular instance where the circumstances of that case so require.

Refugee Status
17. The statutory criteria for refugee status originate in the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol, and are made applicable by MA s.4. The criteria speak of a person who

"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ..."

1. In relation to the phrase "well-founded fear of being persecuted" Dawson J said in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 396:
   

"Upon any view, the phrase contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear."

See also Toohey J at 406 and Gaudron J at 415.

Natural Justice and Oral Hearings
19. It is beyond argument that the rules of natural justice do not mandate in all cases an oral hearing for the person affected. This was recognised by the House of Lords in Local Government Board v Arlidge (1915) AC 120 at 133. There have been many developments of the law in this area since Arlidge but it remains clear that an oral hearing is not necessary in every case. Thus, in Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, where the High Court was concerned with a statutory power conferred on the respondent to warn off persons from racecourses, Aikin J said (at 516):

"Fairness requires that the person affected should, save in an emergency, be given notice by the Commission of its intention to issue a warning-off notice and of the grounds for that action and should be afforded an opportunity to make representations to the commission on his own behalf, which it must consider before taking action. A notice effective for an indefinite period should not be issued without compliance with at least those procedural requirements. I do not think that fairness requires in this context an oral hearing though in some circumstances the Commission may well find that it cannot resolve inconsistencies between its information and written submissions from the person concerned without such a hearing. It is however for the Commission itself to devise its own procedures in the light of its obligation to act fairly."

Stephen and Mason JJ agreed (at 494).

Refugee Status Review Decisions - a Special Case
20. Against that background, counsel for the appellants undertook the burden of showing that there were features of the review process on refugee status that made oral interview by the decision-maker mandatory in every case.

1. Counsel first pointed to what he called "the subjective nature of the test to be applied". As the passage from the judgment of Dawson J in Chan (supra) shows, there are both subjective and objective elements; see also R v Secretary of State for the Home Department; ex parte Sivakumaran (1988) AC 958. However the undoubted fact that a subjective element is involved does not take the matter very far. Applicants for refugee status could not be regarded as a class of persons inherently and universally likely to be insincere or at least presenting credibility problems. It must follow that there will be cases - and probably many of them - where a decision-maker considers that an applicant is sincere in the expression of fear of persecution on Convention grounds, but that that fear is not, objectively considered, well-founded. There would be no necessity for the decision-maker to interview the applicant if the only issue on which the personal assessment of the applicant's credibility in a face to face interview could be of help had already been decided in the applicant's favour.

2. Secondly, counsel argued that the process of determining refugee status involves judgments on the political, religious, racial and human rights situation in a foreign nation. There is, he said, considerable scope for the review officer to misunderstand, misinterpret or to be misinformed about these issues, and how they may affect the applicant. Accepting this assertion at face value, it does not follow by any means that misunderstanding, misinterpretation or misinformation exists or is likely to exist in every case or that the potential for that to happen will be eliminated by oral interview. In a context where, as the evidence shows, the materials and reasoning adopted both by the primary decision-maker and the RSRC had been made available to the applicant and the opportunity given to him or her to respond, we remain unpersuaded that an oral interview in every case is the only appropriate means for the applicant to identify such potential error in the decision-making process.

3. Thirdly, counsel for the appellants argued that in most cases the applicant speaks little or no English and must rely upon an interpreter. The applicants may be in fear of the authorities in their countries and may still feel apprehensive vis-a-vis authority and may be afraid to speak freely and give a full and accurate account of their case. The language of this submission comes from the "Handbook on Procedures and Criteria for Determining Refugee Status" published in 1988 by the Office of the United Nations High Commissioner for Refugees (par.198).

4. Granted that some individual cases may display these features to such an extent that a failure to have an oral interview may constitute a breach of the rules of natural justice, it does not follow that each and every case must lead to that conclusion. It is self evident that while many applicants will speak little or no English, others will have an adequate command of the language. The argument asserts that the applicant will be fearful, to an extent inhibiting the giving of a full and accurate account of his or her case, to all persons in authority, including Australian officials, even in circumstances where there would be no rational basis for assuming that information, disclosed would get back to authorities in the applicant's country of origin. All we can say is that while one could not exclude the possibility of that apprehension existing in some cases, it is quite fanciful to suggest that it would be common to all applicants, still less that it is a factor which can only be overcome by oral interview as opposed to other forms of communication. Why is it not possible that such apprehension and mistrust would also exist at an oral interview?

5. Fourthly, reference was made to the importance to the applicant and his or her family that a correct decision is made. That importance may readily be accepted. As his Honour said (at 47), the decisions made "may literally have life or death consequences for the person affected". However that undoubted fact reinforces the admitted conclusion that the rules of natural justice must be applied. It does not compel the conclusion that a particular procedure, namely an oral interview by the decision-maker, is mandatory in every case, whatever the circumstances.

6. Fifthly, it was argued that the failure to adopt the practice of offering to each applicant an oral hearing meant that the review officer was unable to test the credibility of the applicant by reason of his or her demeanour and behaviour in the context of a face to face hearing, to clear up false assumptions or confusion or to seek an explanation of an apparently "clearly unfounded or abusive" application. Reference was made to Brunskill v Sovereign Marine and General Insurance Co Limited (1985) 62 ALR 53. However that case involved a contractual claim and the High Court's judgment dealt with the approach to be applied by an appellate court where a trial judge makes findings of fact based on the credibility of witnesses. It is of no assistance in an administrative law context. Again, the appellants' argument could well be applicable to particular cases which happen to display a need for the resolution of credibility issues. But for present purposes the appellants have to show that all cases of review of applications for refugee status have that feature. There is no logical reason for thinking that they would.

7. This is a convenient point to deal with some Canadian and United States authorities relied upon by the appellants. Those cases arose respectively in the context of s.7 of the Canadian Charter of Rights and Freedoms and the due process clauses in the Fifth and Fourteenth Amendments to the United States Constitution. Dealing as they do with entrenched constitutional guarantees, such authorities can provide at best guidance by analogy for the Australian task of giving content to the common law rules of natural justice in a particular statutory setting. Quite apart from that qualification however, the authorities provide little assistance to the appellants.

8. In re Singh and the Minister of Employment and Immigration (1985) 17 DLR (4th) 422 the Supreme Court of Canada considered the question whether procedures for dealing with applicants for refugee status complied with s.7 of the Canadian Charter of Rights and Freedoms which provides that "everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice". The attack on the statutory procedures succeeded. But the following passage from the judgment of Wilson J (with whom Dickson CJC and Lamer J agreed) shows that the court stopped well short of mandating an oral hearing in every case. Wilson J said (at 464):
   

"Do the procedures set out in the Act for the adjudication of refugee status claims meet this test of procedural fairness? Do they provide an adequate opportunity for a refugee claimant to state his case and know the case he has to meet? This seems to be the question we have to answer and, in approaching it, I am prepared to accept Mr Bowie's (counsel for the Minister) submissions that procedural fairness may demand different things in different contexts (authority cited).

Thus it is possible that an oral hearing before the decision-maker is not required in every case in which s.7 of the Charter is called into play. However, I must confess to some difficulty in reconciling Mr Bowie's argument that an oral hearing is not required in the context of this case with the interpretation he seeks to put on s.7. If "the right to life, liberty and security of the person" is properly construed as relating to matters such as death, physical liberty and physical punishment, it would seem on the surface at least that these are matters of such fundamental importance that procedural fairness would invariably require an oral hearing. I am prepared, nevertheless to accept for present purposes that written submissions may be an adequate substitute for an oral hearing in the appropriate circumstances. I should note, however, that even if hearings based on written submissions are consistent with the principles of fundamental justice for some purposes, they will not be satisfactory for all purposes. In particular, I am of the view that where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing. Appellate courts are well aware of the inherent weakness of written transcripts where questions of credibility are at stake and are so extremely loath to review the findings of tribunals which have had the benefit of hearing the testimony of witnesses in person (authority cited). (Authority cited). I find it difficult to conceive of a situation in which compliance with fundamental justice could be achieved by a tribunal making significant findings of credibility solely on the basis of written submissions.

As I have suggested, the absence of an oral hearing need not be inconsistent with fundamental justice in every case. My greatest concern about the procedural scheme envisaged by ss.45-58 and 70-71 of the Immigration Act 1976 is not therefore with the absence of an oral hearing in and of itself, but with the inadequacy of the opportunity the scheme provides for a refugee claimant to state his case and know the case he has to meet." (Emphasis added)

1. Singh was followed in the later Canadian case of Re Conway (1992) 86 DLR (4th) 655 at 665-667 where German J of the Ontario Court (General Division) held that in a mental health detention context there was a right to a hearing before the Lieutenant-Governor but that an oral hearing was not necessarily either appropriate or required. In Goldberg v Kelly 397 US 254 (1970) the United States Supreme Court held that oral hearings were required before the cancellation of welfare benefits. However the judgment of the majority provoked a strong dissent from Justice Hugo Black, a great defender of individual rights, but also one who, through two terms as United States Senator for Alabama, had considerable experience of the realities of government. His Honour said (at 278):
   

"The Court apparently feels that this decision will benefit the poor and needy. In my judgment the eventual result will be just the opposite. While today's decision requires only an administrative, evidentiary hearing, the inevitable logic of the approach taken will lead to constitutionally imposed, time-consuming delays of a full adversary process of administrative and judicial review. In the next case the welfare recipients are bound to argue that cutting of benefits before judicial review of the agency's decision is also a denial of due process. Since, by hypothesis, termination of aid at that point may still 'deprive an eligible recipient of the very means by which by which to live while he waits,' ante, at 264, I would be surprised if the weighing process did not compel the conclusion that termination without full judicial review would be unconscionable. After all, at each step, as the majority seems to feel, the issue is only one of weighing the government's pocketbook against the actual survival of the recipient, and surely that balance must always tip in favor of the individual. Similarly today's decision requires only the opportunity to have the benefit of counsel at the administrative hearing, but it is difficult to believe that the same reasoning process would not require the appointment of counsel, for otherwise the right to counsel is a meaningless one since these people are too poor to hire their own advocates. Cf. Gideon v. Wainwright, 372 US 335, 344 (1963). Thus the end result of today's decision may well be that the government, once it decides to give welfare benefits, cannot reverse that decision until the recipient has had the benefits of full administrative and judicial review, including, of course, the opportunity to present his case to this Court. Since this process will usually entail a delay of several years, the inevitable result of such a constitutionally imposed burden will be that the government will not put a claimant on the rolls initially until it has made an exhaustive investigation to determine his eligibility. While this Court will perhaps have insured that no needy person will be taken off the rolls without a full 'due process' proceeding, it will also have insured that many will never get on the rolls, or at least that they will remain destitute during the lengthy proceedings followed to determine initial eligibility."

1. In a subsequent case the Court held that no oral hearing was required before termination of social security disability benefits: Matthews v Eldridge 424 US 319 (1976). Finally, counsel for the appellants argued that the learned trial judge erred in giving any, or too much, weight to the cost to government of providing procedural safeguards. His Honour said (at 48):
   

"In my opinion, courts should be reluctant to impose in the name of procedural fairness detailed rules of practice, particularly in the area of high volume decision-making involving significant use of public resources. Although there has been considerable development in the area of procedural fairness since the decision of the House of Lords in Local Government Board v. Arlidge (supra), there is still much to be said for the observation of Lord Shaw at p 138 where, speaking of the need for administrative authorities to act honestly and by honest means, he said: 'In regard to these certain ways and methods of judicial procedure may very likely be imitated; and lawyer-like methods may find especial favour from lawyers. But that the judiciary should presume to impose its own methods on administrative or executive officers is a usurpation. And the assumption that the methods of natural justice are ex necessitate those of Courts of justice is wholly unfounded.' Accepting that the present age of extensive government regulation and wide ranging executive involvement in the lives and activities of citizens has elicited a less deferential attitude on the part of the courts to the executive than used to be the case, there is nevertheless a balance to be struck between the roles of the respective arms of government."

1. We do not see anything exceptional in his Honour's comments. As his Honour made explicitly clear (at 47), the case was not "an occasion for a general review, criticism or endorsement of the merits of the administrative procedures used by the Ministers, delegates and officers."

2. There must be occasions where the imposition by courts of detailed rules of procedure on administrative processes would run the risk of the kind of unintended consequence, resulting in greater injustice, referred to by Black J in Goldberg. However the present case can we think be resolved simply as an analysis of the nature of the class of decisions in question. For the reasons already given, we think such an analysis leads to the conclusion that the rules of natural justice do not mandate an oral interview by the decision-maker with every applicant for refugee status, although in particular cases, for example where a real issue of credibility is involved or it is otherwise apparent that an applicant is disadvantaged by being limited to submissions or responses to the decision-maker in writing, it may be that observance of the fundamental requirements of natural justice can only be satisfied by a determination made upon an oral hearing.

3. The appeal will be dismissed with costs.