Content of the obligation to afford procedural fairness
66 The question whether a procedure was fair is necessarily tied to the particular facts of the case: SZBEL v Minister for Immigration [2006] HCA 63; 228 CLR 152 at [26]. A finding of procedural fairness on particular facts is not binding as if it were a legal principle to which the doctrine of precedent attaches. However, findings in earlier cases may provide useful guidance in relation to the application of those principles.
67 Procedural fairness is concerned with, and requires, a fair procedure, and not a fair outcome: SZBEL at [25]. Fairness is not an abstract concept, and the concern of procedural fairness is to avoid "practical injustice": Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; 214 CLR 1 at [37] (Gleeson CJ). In the context of the present appeal, the assessor conducting the ITOA was required to adopt a procedure that was "reasonable in the circumstances" and which did not "so constrain the opportunity of the person [the appellant] to propound his or her case for a favourable exercise of the power to amount to a 'practical injustice'": SZSSJ at [82]. The content of the obligation to afford procedural fairness must be assessed in its legal and factual context. The real question is what is required to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which it is to be made: Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [30] (Kiefel CJ, Bell and Keane JJ).
68 The statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires: SZBEL at [26]. In the present appeal, the nature of the ITOA and its function in the legislative scheme of the Migration Act informs the content of the obligation to afford procedural fairness in the ITOA process. The Minister, by his acceptance that procedural fairness was to be afforded to the appellant in the ITOA process, must be taken to have accepted that the assessor undertook the ITOA process under and for the purpose of informing the exercise of a power under the Migration Act, such that the obligation to afford procedural fairness was implied as a condition of the exercise of the statutory power through the application of a common law principle of statutory interpretation: SZSSJ at [74]-[75]. The Minister's concession obviated the need to establish as a question of fact whether the Minister personally made a procedural decision to consider whether to make a substantive decision to exercise a non-delegable discretionary power, with that procedural decision leading the Department to instruct the assessor to perform the ITOA, so as to inform the Minister's substantive decision: cf, SZSSJ at [74]-[75]. During the hearing of the appeal, the parties identified that the ITOA was directed towards informing the Minister's potential exercise of one of two non-delegable discretionary powers under the Migration Act. The Minister submitted that the ITOA was undertaken to inform his potential exercise of his power under s 46A(2) to "lift the bar" to allow an unauthorised maritime arrival, like the appellant, to make a valid application for a visa. The appellant submitted that the ITOA was undertaken to inform the Minister's potential exercise of his power under s 195A to grant a visa to a person who is in detention. The appellant submitted that while he was not in detention during the ITOA process or afterwards, if he was to be removed from Australia under s 198 of the Act, that would necessarily involve him being detained, and so the Minister's power to grant a visa to a person in detention under s 195A of the Act would then be enlivened.
69 The obligation to afford procedural fairness includes a general requirement to give a person who is the subject of a decision the opportunity to ascertain the relevant issues and comment on any adverse information before the decision is made. As with the content of the obligation to afford procedural fairness generally, the content of this particular requirement to put adverse information must be assessed in its legal and factual context. An often cited formulation, to which the parties in this appeal referred, is that "an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made": Kioa v West [1985] HCA 81; 159 CLR 550 at 629 (Brennan J). That formulation has been cited with approval on many occasions: see, for example, Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 at [15]-[17] (the Court); Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [2] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).
70 The content of the requirement to put adverse information has received particular attention in the context of migration cases in which the relevant adverse information was contained in country information that was not specific to the person who was the subject of the decision. In the present circumstances where the ITOA process engaged the common law obligation to afford procedural fairness, the provisions in the Migration Act that exclude country information from the content of the statutory procedural fairness hearing rules that govern other review processes under the Act, did not apply: cf. ss 359A(4)(a), 424A(3)(a) and 473DE(3)(a). The existence and content of an obligation to put adverse country information must be assessed on the common law standard. Country information can be repeated in many documents. This may require particular focus on whether any failure to put particular documents containing country information was reasonable in the circumstances, or amounted to practical injustice. The person who is the subject of a decision should be given the substance of adverse country information, so that he or she may meaningfully respond to it: Plaintiff M61/2010E v The Commonwealth of Australia [2010] HCA 41; 243 CLR 319 at [98] (the Court). However, procedural fairness does not necessarily require that every detail of the country information be put to the person, or that the person be provided with a copy of every documentary source of country information: see, for example, Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; (2012) 200 FCR 233; MZYPY v Minister for Immigration and Border Protection [2014] FCAFC 68.
71 In SZQHH, which was relied upon by the Minister in this appeal, the Full Court considered a claim that the appellant was denied procedural fairness in a review process conducted by the Department because the reviewer relied on country information that was not put to the appellant. The appellant was an Afghan national who claimed to fear persecution on the grounds of his Hazara ethnicity and Shia Muslim religion. The reviewer found that Hazara Shias did not face a situation in Afghanistan that gave rise to a well-founded fear of persecution. The reviewer relied on multiple sources of country information, relevantly including a newspaper article in the Christian Science Monitor, which had not been put to the appellant. The Full Court reviewed the Christian Science Monitor article, which was in evidence, and found that it did not contain anything substantively new or different from the other country information that was put to the appellant. The Full Court held that the non-disclosure did not amount to a failure to afford procedural fairness. The joint judgment of Rares and Jagot JJ at [30] considered the operation of the obligation to put adverse information in that context -
However, the reviewer's obligation of procedural fairness did not require the reviewer to put to the applicant every piece of country or other information that the reviewer was considering. Rather, procedural fairness required that the applicant be given the substance of the credible, relevant and significant information available to the reviewer on an issue in the review, of which the applicant was not already on notice. The purpose of giving a person in the position of the applicant the substance of such information is to enable him or her to have an opportunity to deal with its potentially adverse consequences by responding to the decision-maker on those consequences. That enables the decision-maker to take into account the person's answer to the substance of information that has the potential of being used adversely to his or her interests. Affording the person an opportunity of dealing with some matter that he or she has not already had a chance to address in the process ensures that the process itself is fair.
72 In MZYPY, which was also relied upon by the Minister in this appeal, the Full Court considered a similar claim that the appellant was denied procedural fairness in a review process conducted by the Department because the reviewer relied on country information that was not put to the appellant. The appellant was a Sri Lankan national who claimed to fear persecution, or face a real risk of significant harm, on the grounds of his claimed prior involvement with the LTTE, his claim that the Karuna Group was looking for him, and his status as a returned failed asylum seeker. The joint judgment of Flick, Griffiths and Gleeson JJ at [36]-[38] endorsed the reasoning of Rares and Jagot JJ in SZQHH, and at [35] stated the principle that "in some circumstances, procedural fairness obligations may require disclosure of country information which is to be relied upon by the decision-maker and which has not otherwise been disclosed to the applicant concerned, but procedural fairness does not require every item of country information to be disclosed." The Full Court at [39] found that two documents of country information, which addressed the issue of the treatment of failed Tamil asylum seekers who had returned to Sri Lanka, and which had not been put to the appellant, did not contain any information that was not also set out in other country information that had been disclosed to the appellant. Those two documents were not in evidence before the Full Court, so the Full Court was required to assess the issue by having regard only to the reviewer's references to those documents in the report assessing the appellant's claims. The Full Court stated at [40] that "in the absence of the appellant pointing to anything in the country information which was not disclosed, any argument as to there being a denial of procedural fairness is an argument without substance."
73 By contrast, in BRF038 v Republic of Nauru [2017] HCA 44; 91 ALJR 1197, which was relied upon by the appellant in this appeal, the High Court, exercising original jurisdiction under s 5(2) of the Nauru (High Court Appeals) Act 1976 (Cth), considered the same issue whether a failure to put adverse country information amounted to a denial of procedural fairness, and held that it did. In that case, the High Court considered the common law standard of procedural fairness, which was expressly preserved by the relevant Nauruan migration legislation to apply to the relevant tribunal in its review of migration determinations of the Secretary of the Department of Justice and Border Control of Nauru. The appellant was a Somalian national who applied for refugee status on the basis of his claim to fear persecution in Somalia arising from his membership of the Gabooye tribe. The appellant claimed that the Somalian authorities were unwilling to assist him and his family due to their ethnicity, and that there was nowhere in Somalia where he would be safe from racism, discrimination and militant groups. The tribunal found that the appellant did not have a well-founded fear of persecution as a result of his membership of the Gabooye tribe. In doing so, it relied on country information that indicated that the Somaliland police force included police officers from every tribe to support a finding that, if returned to Somalia, the appellant would have some redress from the acts of others. The Tribunal did not put the appellant on notice of the issue of the tribal composition of the Somaliland police force, or the substance of the country information that every tribe was included in the police force, at any point in the process. The High Court held that the tribunal failed to afford the appellant procedural fairness.