Case: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 77 ALJR 1088
Outcome: applied
their discussion of Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 77 ALJR 1088 ( Dranichnikov ) in the passage in their work to which I have drawn attention, the learned authors of Judicial Review of Administrative Action observe (at p 275) that this decision "has the effect of extending the procedural fairness rule to the situation where the decision-maker has substantially 'switched off' during an important phase of the pre-decisional process". I respectfully agree. That, with respect, is precisely what the Tribunal as constituted for the rehearing in this case did. To make that observation is not in any way to diminish the very real difficulty under which a tribunal dealing with an unrepresented layperson not fluent in English must labour when conducting a review on the merits but is to acknowledge that such a tribunal must nonetheless at least come to grips with the claim as made. In a footnote (p 275, fn 606) in this part of their work the learned authors of Judicial Review of Administrative Action instance SZIFI v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 63 ; (2007) 238 ALR 611 ( SZIFI ) as a case which, even though Dranichnikov is not mentioned, offers a good example of the type of procedural fairness error for which they contend Dranichnikov stands. In SZIFI Greenwood J observed (at 614, [43]): [43] Once it is established that the tribunal has asked itself the wrong question by, for example, asking whether it can be satisfied that the appellant faces a real chance of persecution should he return to the People's Republic of China, or has identified the wrong issue, or taken into account, in one part of its deliberations, a notion that the appellant is an Indonesian rather than a Pakistani national, the tribunal is seen to have failed to provide the appellant with procedural fairness and thus jurisdictional error arises ( Refugee Review Tribunal and Another; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [59] per Gaudron and Gummow JJ). The repository of the power is constrained by an obligation to act reasonably by providing procedural fairness. A decision made in light of a failure to act reasonably is not a decision made under the Act for the purposes of s 474. I do not accept that the basis for this type of jurisdictional error is as confined as the Minister has propounded or that regard to the cases cited bears this out. Rather, each of these cases offers but another example of a procedural fairness error on the part of the Tribunal in failing truly to engage with the claim as presented by the visa applicant. That this is so is, in my opinion, starkly evident in the following passage from the joint judgment of Lee and Moore JJ in WAIJ (at 580, [53] [54]): [53] It is a denial of a fair process to purport to dismiss documents from consideration where the material therein supports an applicant's case in substantive respects and no ground for such a course is provided by the documents on their face or by other facts. [54] It follows that the tribunal did not accord to the appellant practical fairness and justice in the tribunal's conduct of the review. Accordingly, the decision of the tribunal involved jurisdictional error and was not a decision authorised by the Act: see Dranichnikov v Minister for Immigration and Multicultural Affairs ... at [24], [32] per Gummow and Callinan JJ. Here, the Tribunal has discounted the letter of 6 March 2007 on the basis of credibility findings concerning the male Appellant but these findings, in turn, are tainted by responses to questions put to the male Appellant at the hearing and subsequent reasoning, which questions and reasoning were each grounded in a false premise concerning that letter. Significantly, in WAIJ, Lee and Moore JJ each conceived that the procedural fairness they described gave rise to the same type of jurisdictional error as that found by the High Court in Dranichnikov . In contrast to WAIJ , Dranichnikov is not expressly mentioned in the reasons of the majority (Madgwick J, Conti J agreeing) in NAJT . However, that part of those reasons in NAJT which upholds the allegation that there had been a jurisdictional error constituted by a failure on the part of the Tribunal to "have regard" to a corroborative letter (147 FCR at 92-93, [212] [213]) is consistent with the error found in Dranichnikov and with the classification by the learned authors of Judicial Review of Administrative Action of that error as a type of procedural fairness error. Further, the letter concerned in that case had not been completely ignored but rather the subject of "fleeting, uncritical references".