Case: Johns v Australian Securities Commission and Ors [1993] HCA 56 ; (1993) 178 CLR 408
Outcome: referred to
applicant submits that the failure to comply with s 431 of the Migration Act gives rise to procedural unfairness. He submits that procedural fairness arises at the pre-hearing stage of the Tribunal hearing and continues during and beyond the hearing and until the Tribunal fulfils its statutory functions by the provisions and publication of its decision. He claims the Tribunal's decision was vitiated by its failure to afford him procedural fairness. The applicant relies upon Ainsworth and Anor v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 and Johns v Australian Securities Commission and Ors [1993] HCA 56 ; (1993) 178 CLR 408 as authority for the proposition that procedural fairness may require an opportunity to oppose publication of a decision. Johns concerns a decision by the Australian Securities Commission to allow transcript of interviews it had conducted with the appellant to be released to the public. In that case, the High Court held that the applicant ought to have been given an opportunity to make submissions before that decision was made and accordingly it was invalid. On this basis the applicant says that the Tribunal's decision to publish its reasons was also a decision which is reviewable. I accept that the decision by the Tribunal to publish its reasons on the internet in the form which it did was a decision which might be challenged. Indeed, after a request by the applicant, the Tribunal removed the reasons from the internet. If the Tribunal had refused to remove its reasons from the internet, it may have been open to the applicant to challenge that decision and seek injunctive relief to restrain the continued publication on the basis that it was inappropriate for the Tribunal to have published its reasons without giving the applicant an opportunity to make submissions about the details which should not be published. That is, the applicant might have successfully made an allegation that procedural fairness had been denied in relation to the decision to publish . However, any errors which may have occurred in the Tribunal's decision to publish were incapable of affecting its decision on the applicant's refugee status, which had been concluded before publication and in respect of which fair procedures had been observed. It follows that this ground of challenge must be rejected. The applicant's third challenge to the decision relates to the failure of the Tribunal to disclose to the applicant a file note dated 29 April 1998 and made by an officer of the Department, which was provided to the Tribunal. The file note referred to inconsistencies between the applicant's application for a protection visa and that of his brother, whose application for a protection visa was also being determined by the Department. The file note contains information which is potentially adverse to the applicant, in that it suggests the account provided by him is inconsistent with the account provided by his brother. It also incorrectly summarises the information contained in the applicant's protection visa application, stating that he claimed only one brother was detained by authorities, when in fact his application states that the Libyan government ' jailed many of my brothers and cousins since 1984 ' and refers specifically to two brothers.