Case: Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57
Outcome: referred to
In Re Minister for Immigration and Multicultural Affairs v Miah (2001) 206 CLR at 69 [31], Gleeson CJ and Hayne J emphasised that in considering a legislative scheme or context and any particular kind of power within it: It is necessary to pay regard to the practical context in which the decision maker must consider whether to exercise the power. This may be of particular importance where, as here, the complaint is of a failure by the decision-maker to communicate something to an affected person before a decision is made. It is the potential for a decision to affect rights, interests, or legitimate expectations, that attracts the requirement of procedural fairness. 48 The step that is said to have been required to have been taken here was to communicate with the representatives of the appellant, informing them of an apparently unsuccessful attempt to respond to a letter sent under s 424A. One can describe that as exercising a power. Any step in the administrative process is in one sense the exercise of power. It is more easily and aptly described as the taking of an administrative step within the context of the review process provided for by Part 7 of the Migration Act . Not to take that step or not to exercise that power was, in practical terms, to deny the appellant the invitation that he had apparently taken-up to respond to the letter of 18 January. Given that it was apparent that the response had not been received, through human or machine error, a failure to exercise the power or take the step had the consequence of ensuring that the response, which s 424A , or the actions of the Tribunal, contemplated was not received. 49 The Migration Act , s 424 provides for the Tribunal "getting" information that it considers relevant. Section 424(1) says that if the Tribunal gets such information, it must have regard to it. Section 424A contains the well-known obligation to send a letter giving the applicant particulars of relevant information and inviting the applicant to comment. Section 424B requires the invitation to specify how the comments may be given. Section 424C(2) empowers the Tribunal to make a decision if the comments are not given within time " without taking any further action to obtain the applicant's views on the information. " It is implicit in Division 4 of Part 7 that the Tribunal must read and have regard to any response to an invitation to comment sent pursuant to s 424A. No express provision states as much, but Parliament did not need to. It would undoubtedly be wrong of the Tribunal to say that it may well have received the envelope containing the response, but it was not obliged to open it and read the contents, because it had no obligation to inquire. Such an obligation (together with one to have regard to the contents) inheres within Part 7 and the undertaking of the review process. The Tribunal is conducting a review by reference to the material before it. Here, the material before it was a document which, on its face, clearly stated that a response was provided, but evidently, through some oversight or error, human or machine, it had not been transmitted. 57 These conclusions can be fortified by the recognition, so often stated, that the Tribunal is engaged in an inquisitorial process: Re Ruddock; Ex parte S154 201 ALR at 450-451 [57]-[58], 455-6 [81], 457 [86] and [88]; Miah [2001] HCA 22 ; 206 CLR 57 at 69-70 [31] - [32] ; Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at 435 [29] - [31] ; Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601 at 648 [208] ; Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 at 513 [97]; Re Minister for Immigration and Multicultural Affairs; ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128 at 146 [52] ; Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 576 [187] ; NCSC v News Corporation Limited [1984] HCA 29 ; (1984) 156 CLR 296 at 315; Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57 ; (2006) 204 CLR 82 at [75] ; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134 [2003] HCA 1 ; (2003) 195 ALR 1 at 8; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at 405, [78] ; Appellant S395 of 2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 at [39] ; VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at 24; Re Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2003) 217 CLR 387 at 413 [76] ; NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62 ; (2004) 221 CLR 1 at [22] ; SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 49 ; (2006) 229 ALR 423 at [4] ; SZBEL 228 CLR 592 at [40]; SZFDE [2007] HCA 35 at [30] ; Minister of Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518 at 540-41 [71] , 526 [18] and 531 [37]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [111] ff and [199]; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 ; (2005) 223 ALR 171 at [9] , [69] and [165].