A denial of procedural fairness?
18 The first of the two Grounds of Appeal as amended asserts a denial of procedural fairness on the part of the Authority as to the manner in which it dealt with the Appellant's:
"attempts to have access to all the freedom of information material"; and
"request for further time to obtain that material".
The "freedom of information material" there referred to is information which had been sought by the Appellant pursuant to a request made under the Freedom of Information Act 1982 (Cth) on 1 August 2016. That request, it may be noted, was ultimately refused on 17 September 2017.
19 The manner in which the Authority dealt with these two matters emerges from the following paragraph in its reasons for decision:
8. The migration agent submits the applicant has a Freedom of Information ("FOI") application pending since 3 August 2016 before the [Authority] for access to all department files. As a matter of procedural fairness, the applicant requires a copy of all the review material to properly answer his case. The migration agent further submits the timeframe for lodging submissions in the Practice Direction is unreasonable. The department's inability to process FOI applications urgently should not be allowed to hinder the applicant's ability to present his case to the [Authority]. The first [Authority] submission does not clearly request I forgo making a decision until the FOI application is finalised, but the inference I draw is that is the submission the migration agent is attempting to advance. I note on 4 August 2016, the [Authority] gave to the applicant the materially relevant documents and recordings from the review material outside of the FOI scheme. In these circumstances I consider it is reasonable to proceed to make a decision on the evidence currently before me.
The "timeframe" which is there referred to provided for the Appellant to file "submissions and new information" by 22 August 2016. This was an extension of the usual 21 day period which was due to expire on 11 August 2016.
20 The "starting point" for the resolution of the first Ground of Appeal and any question as to the application and content of the rules of natural justice is the statute conferring the power: Kioa v West (1985) 159 CLR 550 at 614. Brennan J there relevantly observed:
To ascertain what must be done to comply with the principles of natural justice in a particular case, the starting point is the statute creating the power. By construing the statute, one ascertains not only whether the power is conditioned on observance of the principles of natural justice but also whether there are any special procedural steps which, being prescribed by statute, extend or restrict what the principles of natural justice would otherwise require.
In Annetts v McCann (1990) 170 CLR 596 at 604, Brennan J later likewise observed:
The relevant law must be found in the statutory provisions which create the power and confer it on the repository, though the terms of the statute may be expanded by the implication of conditions supplied by the common law. Thus the common law will usually imply a condition that a power be exercised with procedural fairness to parties whose interests might be adversely affected by the exercise of power. This is the foundation and scope of the principles of natural justice. The common law confers no jurisdiction to review an exercise of power by a repository when the power has been exercised or is to be exercised in conformity with the statute which creates or confers the power ... It follows that the statute, construed to include any terms supplied by the common law, must define the conditions governing the exercise of a statutory power by a statutory authority.
See also: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 at [30] and [52], (2001) 206 CLR 57 at 69 per Gleeson CJ and Hayne J and 74 to 75 per Gaudron J. Justice McHugh in Miah likewise observed (at 94):
[130] The starting point for determining the content of the duty to accord natural justice is therefore the statutory context.
See also: [2001] HCA 22 at [190] to [191], (2001) 206 CLR at 115 to 116 per Kirby J.
21 Part 7AA of the Migration Act unquestionably sets forth a scheme of review which is intended by the Commonwealth legislature to be undertaken with some degree of expedition. So much is self-evident from the heading to Pt 7AA and the characterisation of the scheme of review as a "fast track review process" and a "limited form of review": Migration Act s 473BA. It is also self-evident from (inter alia) the mandate to the Minister to "refer a fast track reviewable decision … as soon as reasonably practicable after the decision is made": Migration Act s 473CA.
22 There is no question that the Commonwealth legislature can limit the content of common law rules (e.g., Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31 at [97], (2012) 246 CLR 636 at 666 per Gummow, Hayne, Crennan and Bell JJ) and that the content of the rules of procedural fairness in any given case is (accordingly) not only tempered by the facts and circumstances of the case but also by the statutory context in which the decision is made. The common law rules can be expressly or impliedly excluded by statute, although an intention on the part of the legislature to exclude those rules is "not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations": Commissioner of Police (NSW) v Tanos (1958) 98 CLR 383 at 396 per Dixon CJ and Webb J. There must be a "sufficient indication" that "they are excluded by plain words of necessary intendment": Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (WA) [2008] HCA 4 at [182], (2008) 234 CLR 532 at 595 to 596 per Crennan J.
23 It is within the statutory context of Pt 7AA, and in particular Division 3, that the Appellant's argument as to a denial of procedural fairness is to be resolved. The question is the extent to which the common law rules of procedural fairness have been excluded, either expressly or impliedly, by that Division.
24 But for such constraints as may be imposed by Pt 7AA, the present Appellant may well have been entitled - by reason of the common law rules of natural justice or procedural fairness - to be afforded a reasonable opportunity to obtain such information or other materials as he considered relevant to the claims being made: cf. R v Thames Magistrates' Court; Ex parte Polemis [1974] 1 WLR 1371 at 1375 per Lord Widgery CJ; Rogers v Law Coast Mortgages Pty Ltd [2002] FCA 181 at [24] per Finn J; SZNSI v Minister for Immigration and Citizenship [2010] FCA 223 at [10] per Flick J. In some circumstance a reasonable opportunity to be heard in respect to that information and material may also suggest that an opportunity to be heard in person by the decision-maker is prudent: cf. Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 516 per Aickin J (Stephen and Mason JJ agreeing). That which constitutes a reasonable amount of time in which to prepare for a hearing and to collect information perceived to be of potential relevance must necessarily take into account the nature and complexity of the legal and factual issues involved and the personal attributes of a claimant, including familiarity with the English language: Zhaou v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 748 at [76] to [86] per Kenny J.
25 But for such express or implied statutory constraints as may be found with Pt 7AA, the present Appellant may well have been denied common law procedural fairness. Such documents as may have been provided pursuant to the Freedom of Information Act request may well have been relevant to the claims being advanced before the Authority. The time between the referral of the review to the Authority on 21 July 2016 and the time constraint for making further submission by 22 August 2016 inevitably precluded the Appellant from any realistic ability to collect and present potentially relevant material.
26 But those common law entitlements have been constrained by Pt 7AA and, in particular, by Div 3 of that Part. Part 7AA expressly provides for a "limited form of review" (s 473BA) to achieve the statutory objective of a "fast track" review (s 473CA). Of particular importance is the statement in s 473DA(1) that Div 3 is taken to be "an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted" by the Authority. Also of significance is the provision in Div 3 that the Authority is "to review decisions on the papers" (s 473DB) and is constrained in its ability to consider "new information" to those circumstances set forth in ss 473DC and 473DD. The Authority is "not burdened with a duty to get, request or accept any new information": cf. DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [64] per Barker J.
27 For present purposes, however, it is unnecessary to resolve the extent to which s 473DA of the Migration Act excludes the content of the common law rules of procedural fairness as compared with provisions such as ss 51A(1), 357A(1) and 422B(1) of that same Act.
28 Of present concern is the extent to which the common law rules which permit a party a reasonable time in which to prepare and present his case have been excluded or modified by Pt 7AA.
29 On this question, it is concluded that Counsel for the Respondent Minister was correct in submitting that Pt 7AA impliedly constrained the time available to a claimant seeking review to collect and present information to the Authority for its consideration. Where a decision is to be reviewed by the Authority, all parties must proceed in a manner consistent with achieving the objects and purposes of the Pt 7AA review process. Part of the scheme of the Pt 7AA review process is expedition. The scheme is expressly not a scheme of review which permits a party seeking review the freedom to collect and present submissions in a manner which may otherwise be permitted by common law rules of procedural fairness, but inconsistent with a requirement for parties to proceed expeditiously. Although it may only be the Minister who is expressly the legislative target of a requirement to proceed as quickly as "reasonably practicable" (s 473CA), Div 3 impliedly imposes a like requirement upon all of the parties to the review.
30 In circumstances where a party has made a request under the Freedom of Information Act some time ago and where the production of documents is known to be or is likely to be imminent, the denial of an opportunity to present selected material to the Authority may well constitute a denial of natural justice or procedural fairness. Whether s 473DA would preclude even such a limited operation of the rules of natural justice is a question which need not be resolved. If the phrase "in relation to reviews" in s 473DA(1) were to be construed as not extending to the operation of the rules of natural justice insofar as they may operate prior to the actual commencement of the review process and not extending to the preparation by a party of his case so as to enable the Authority thereafter to undertake its review function, Div 3 would potentially not be an "exhaustive statement" applying to such pre-review steps in the administrative process.
31 But such are not the facts of the present case. The Appellant in the present case only made his request for documents under the Freedom of Information Act on 1 August 2016, being a date after 21 July 2016 when the matter was referred to the Authority for review. On such facts, there was no reason for the Authority to believe that the request for access to documents would be considered and resolved prior to the review. The review by the Authority was in fact undertaken on 31 August 2016.
32 The Appellant has not made out any case that the Authority denied him natural justice or procedural fairness in proceeding to undertake its review on 31 August 2016. Any entitlement to natural justice or procedural fairness that the Appellant was asserting in the present case has been impliedly excluded by Pt 7AA. The time necessarily involved in permitting the Freedom of Information Act request to be processed, and thereafter the time required on the part of the Appellant to select such documents as he saw fit to provide to the Authority, was inconsistent with the statutory regime of "fast track" decision-making. That is so even though no suggestion was made on behalf of the Respondent Minister that the Appellant was making the Freedom of Information Act request purely (for example) as a "delaying tactic".
33 The first Ground of Appeal is thus rejected.