Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 79 ALJR 1009, 215 ALR 162
Outcome: discussed
In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 79 ALJR 1009; 215 ALR 162 the majority, McHugh, Kirby and Hayne JJ, held that where the Tribunal obtained information which it considers would be the reason, or part of the reason, for affirming the decision that is under review, it had to inform an applicant in writing of that information as part of the fulfilment of the duty of procedural fairness, described as the natural justice hearing rule in s 422B. McHugh J said that s 424A was a statutory formulation of the obligation to accord procedural fairness in the conduct of a review (215 ALR at 181 [73]). His Honour continued (215 ALR at 183 [77]): 'However, because the Act compels the tribunal in the conduct of the review to take certain steps in order to accord procedural fairness to the applicant for review, before recording a decision, it would be an anomalous result if the tribunal's decision were found to be valid, notwithstanding that the tribunal has failed to discharge that obligation. It is not to the point that the tribunal may have given the applicant particulars of the adverse information orally. It is also not to the point that in some cases it might seem unnecessary to give the applicant written particulars of adverse information (for example, if the applicant is present when the tribunal receives the adverse information as evidence from another person and the tribunal there and then invites the applicant orally to comment on it). If the requirement to give written particulars is mandatory, then failure to comply means that the tribunal has not discharged its statutory function. There can be no "partial compliance" with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not. Given the significance of the obligation in the context of the review process (the obligation is mandated in every case), it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act. Any suggestion by the Full Federal Court in NAHV to the contrary should not be accepted. Parliament has made the provisions of s 424A one of the centrepieces of its regime of statutory procedural fairness. Because that is so, the best view of the section is that failure to comply with it goes to the heart of the decision-making process. Consequently, a decision made after a breach of s 424A is invalid.' Hayne J, with whose reasoning Kirby J agreed (215 ALR at 199 [154]; 203 [173]-[174]) said (215 ALR at 210-211 [206]-[208]): 'The language of s 424A is, of course, imperative: "the Tribunal must " take the several steps it prescribes. That imperative language stands in sharp contrast with the permissive terms of, for example, s 424 which says that "the Tribunal may " take various steps. The evident purpose of the provisions of s 424A (and several other provisions in Div 4 of Pt 7) is to give applicants for review procedural fairness. It is clear that want of procedural fairness may constitute jurisdictional error ( Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; 176 ALR 219; [2000] HCA 57 ; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238; [2001] HCA 22 ). As Gaudron and Gummow JJ said in Re Refugee Review Tribunal; Ex parte Aala ((2000) [2000] HCA 57 ; 204 CLR 82 at 109 [59] ; [2000] HCA 57 ; 176 ALR 219 at 237-8; [2000] HCA 57): However, the conditioning of a statutory power so as to require the provision of procedural fairness has, as its basis, a rationale which differs from that which generally underpins the doctrine of excess of power or jurisdiction. The concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures. Unless the limitation ordinarily implied on the statutory power is to be rewritten as denying jurisdictional error for "trivial" breaches of the requirements of procedural fairness, the bearing of the breach upon the ultimate decision should not itself determine whether prohibition under s 75(v) should go. The issue always is whether or not there has been a breach of the obligation to accord procedural fairness and, if so, there will have been jurisdictional error for the purposes of s 75(v). In the present matter, although the provision now in question was, as I have pointed out earlier, one of several intended to achieve procedural fairness, the immediate focus is not upon the "observance of fair decision-making procedures". It is upon "the character of the decision". Has the tribunal validly decided the review? Or is the decision reached in the review, in breach of s 424A, invalid? Where the Act prescribes steps that the tribunal must take in conducting its review and those steps are directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, both the language of the Act and its scope and objects point inexorably to the conclusion that want of compliance with s 424A renders the decision invalid. Whether those steps would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.' (his Honour's emphasis) 30 The Minister submitted that where in an application for review an applicant cites, refers to, discusses, explains, elaborates on or cavils with information, that other information must be regarded as information provided by the applicant for the purposes of the review within the meaning of s 424A(3)(b). The Minister argued that: 'This must be so because of 2 things: firstly it must be presumed that if an applicant refers to information s/he must have intended that the information be considered for the purpose of the review; secondly, once that information is referred to by an applicant the tribunal must consider it in full.' 31 Taken to its logical conclusion this argument must mean that by applying for a review of the delegate's decision, that decision itself is 'information that the applicant gave for the purpose of the application' . And, it would follow, if this were a correct interpretation, that everything which the delegate referred to in his or her decision was also given by the applicant for that purpose. 32 I am of opinion that this construction is not open because the applicant, under s 412 of the Act, has a right to apply to the Tribunal for a review of the decision. The decision in a case like the present is simply the determination to refuse to grant a protection visa. The reasons for the decision are not made into information given by the applicant 'for the purpose of the application' simply because the applicant for review makes an application under s 412. It is pursuant to s 414 of the Act that the original decision, not the reasons for it, is before the Tribunal for review and its statutory function is to review the decision. In conducting that review the Tribunal must conform to the requirements in the Act for the exercise of its jurisdiction, including the requirements of Division 4 of Part 7, and relevantly s 424A. 51 Nor in my opinion is this defect in procedure cured by the fact that the Tribunal told the appellant that it would be in receipt of the departmental file. It would render nugatory the purpose identified by the majority in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 for the relevant information to be identified and of communicating to the applicant for review what Hayne J described (215 ALR at 211 [208]) as '... the relevance to the review of the information that is conveyed'. 52 I am of opinion that it follows from the way in which the Tribunal expressed its reasons, that the reason or a part of the reason for affirming the decision the subject of the review included what the applicant had said and failed to say in the material placed before the delegate in relation to his application as a refugee sur place . The Tribunal had no further information than what had been put before the delegate and what was the subject of the application for review. Having formed the view, communicated in its letter of 8 December 2003, that on the written material before it, it was unable to make a decision in favour of the appellant, the Tribunal necessarily had regard to information in the file which, as it said in its reasons, was before it. Throughout the operative parts of its reasoning (in [24]-[31]), the Tribunal referred to the failure of the appellant to provide supporting documentation, details of the circumstances of his claim and the generality with which he expressed himself about important matters, including, his knowledge of Falun Gong. Critically, the Tribunal said at [28]: 'While the applicant has provided general information about Falungong, its practices and beliefs, information which is freely available through public resources, he has not provided any specific details of his Falungong adherence or practice. The applicant has not provided any supporting evidence of his Falungong membership in Australia, merely making assertions of what he had done.' 53 The Tribunal continued at [30]: 'I have found that the applicant did not have any interest in Falungong prior to leaving China and arriving in Australia, and in light of the applicant's vague and generalised evidence in support of his claim of interest in and adherence to Falungong in Australia , I am unable to accept that the claim has been advanced for any other purpose than to elaborate on his claims based in China, and to provide for himself the profile of, and to enhance his claims to be, a refugee. In this respect I am satisfied that section 91R(3) of the Act applies to the applicant and his conduct in Australia must be disregarded in determining whether he has a well founded fear for being persecuted for a Convention reason.' (emphasis added) 54 The Tribunal had before it the departmental file including the appellant's letter to the delegate of 22 June 2003. I am of opinion that the Tribunal, in coming to its positive finding at [24] of its reasons that the appellant 'elaborated and fabricated his claims to bring himself within the definition of a refugee', took into account what it said was before it, namely all of what was in that file in the applicant's letter accompanying his application for a protection visa. If all of that was not information 'that the applicant gave for the purpose of the application' for review (see s 424A(3)(b)) because it had not been incorporated by reference in his application for review, then the appellant had to be given particulars of the balance of that information to which the Tribunal was having regard contained on the departmental file but not incorporated into the application for review. As Hayne J said in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR at 211 [208], s 424A(2) required the Tribunal to inform the applicant for review, among other things, of the relevance to the review of the information that was conveyed by the information which was extraneous to the application for review. 55 The Minister submitted that it was not necessary for the Tribunal to foreshadow to the appellant any reasoning process which it proposed to adopt in its determination of the application. That submission, however, does not meet the difficulty that no particulars were given about the information which the Tribunal proposed to use from the material which the applicant for review had put before the delegate nor did it inform him of 'the relevance to the review of the information that [was] conveyed', as s 424A(2) required. 58 The Minister referred to M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 , a decision of Gray J given on 25 February 2005, some three months before the High Court decided SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162. Gray J held that information in the applicant's passport given for the purposes of the original application for a protection visa to which the applicant's counsel invited reference in submissions made to the Tribunal was not excluded by s 424A(3)(b) ([2005] FCA 131 [25]). But his Honour held in respect of other information that the Tribunal had not complied with the obligations imposed by ss 424A(1) and (2) ([2005] FCA 131 [23] and [31]). Gray J ultimately concluded that as a matter of discretion the error of the Tribunal in failing to comply with its obligations under s 424A(1) did not attract the grant of relief because the appellant in that case had not revealed what submissions might have been made were he afforded an opportunity to comment ([2005] FCA 131 [35]). 59 His Honour's reasoning on the exercise of the discretion to withhold prerogative relief cannot now be supported because in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 184-185 [83] per McHugh J 203 [174] per Kirby J and 211-212 [210]-[211] per Hayne J it was held that any failure to comply with s 424A(1) was a jurisdictional error. Their Honours held that where there had been no delay, waiver, acquiescence or other conduct of the appellant such as might found a reason for the exercise of the Court's discretion to refuse prerogative relief, a writ of certiorari should issue to quash the decision and a constitutional writ of mandamus should issue to require the Tribunal to hear the application for review according to law. In SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [111] , [155], [231]-[232], which was decided after the oral hearing in this matter, the majority, Weinberg and Allsop JJ decided that this was the proper approach to the grant of relief where a contravention of s 424A(1) had occurred in the Tribunal.