Relevant authorities
61 The applicant cited no direct authority to support his submission that procedural fairness required the Minister, in making a decision under s 501A of the Act, to hear, understand and respond to the applicant's submissions. The applicant relied principally on statements of Gummow and Callinan JJ in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 ("Dranichnikov"), which although decided in relation to a different statutory regime, were submitted to apply equally to a decision under s 501A of the Act.
62 In Dranichnikov, the applicant claimed refugee status on the ground of a well-founded fear of persecution due to his claimed membership of a group of businessmen in Russia who publicly criticised law enforcement authorities for failing to take action against crime or criminals. The Refugee Review Tribunal found against the applicant, as he could not establish that any persecution was based on his membership of the social group of businessman in Russia generally.
63 In Dranichnikov, the High Court majority held that the applicant was entitled to discretionary relief under s 75(v) of the Constitution, as the tribunal's failure to decide a question necessary for its task had denied him natural justice and was a constructive failure to exercise jurisdiction.
64 Gummow and Callinan JJ (with whom Hayne J agreed) held that the tribunal misstated and failed to deal with the case presented to it.
65 Their Honours did not, in terms, state that natural justice required the tribunal to understand the applicant's claim or that a misunderstanding of the basis on which the claim was put would constitute procedural unfairness. Rather, they stated that a failure to respond to a substantial argument was a failure to accord natural justice, as follows (at [24]):
To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.
66 Their Honours stated that although a "failure to accord natural justice did not provide a statutory basis for a review of a decision of the tribunal", what occurred amounted to a constructive failure to exercise jurisdiction (at [24]-[25]).
67 They described the tribunal's task as entailing a number of steps, including determination of an initial question whether the class to which the applicant claimed to belong was capable of constituting a social group for the purposes of the Convention. Their Honours identified the tribunal's error as follows (at [27]):
The tribunal failed to decide the first question. It decided another question, whether Mr Dranichnikov's membership of a social group, namely, of "businessmen in Russia" was reason for his persecution and relevantly nothing more.
68 Hayne J stated that the tribunal failed to exercise jurisdiction because "it did not consider the claim which the applicant was then making, and had earlier made, for protection" (at [95]).
69 As the respondent submitted, under the statutory regime at issue in Dranichnikov, it was mandatory for the Refugee Review Tribunal to consider each basis of a person's claim to have a well-founded fear of persecution. As Finkelstein J subsequently explained in SZDGC v Minister for Immigration and Citizenship and Anor (2008) 105 ALD 25 at [14], the approach of Gummow and Callinan JJ in Dranichnikov was:
consistent with several previous decisions in the Federal Court. For example in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42], Allsop J (with whom Spender J agreed) said:
[42] The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration … It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act … make it clear that the tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant.
70 In contrast, the claims advanced by an applicant are not mandatory considerations in the Minister's exercise of the power conferred by s 501A(2) of the Act. In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at [126] (citing Deane J in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375), Heydon and Crennan JJ, with whom Gleeson CJ also agreed, stated as follows in relation to the analogous discretion to cancel a visa under s 501(2) of the Act:
[W]here relevant considerations are not specified, it is largely for the decision-maker, in the light of the matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards.
71 Their Honours (at [127]) approved a decision of the Full Court of this court in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505, which held that:
[G]iven the breadth of 501, it is not possible to imply into the Act "some obligation on the Minister's part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed."
Parliament has left it to the Minister to decide the matters which are relevant to whether a person who fails the character test should be permitted to remain in Australia.
72 In such a context, I am not persuaded that the Minister is obliged to "deal with" all the applicant's substantive submissions in relation to the exercise of that power, including matters the Minister has decided not to rely upon and to refer to, and explain reasons for any rejection of, all non-peripheral submissions. Although the Minister must consider any submissions that are made, he or she is not required to address matters that are not considered relevant.
73 Therefore, it does not follow from the statement of Gummow and Callinan JJ in Dranichnikov that the failure of the Refugee Review Tribunal reviewing a decision under s 414 of the Act "to respond to a substantial, clearly articulated argument relying on established facts was at least to fail to accord [natural justice]" that procedural fairness requires the Minister, exercising power under s 501A(2) of the Act, to understand the applicant's submissions, to set them out accurately or at all in the reasons, or to respond to them, including by assigning reasons for rejection.
74 The applicant submitted that the principle in Dranichnikov was not restricted to statutory regimes where the decision-maker was required to address mandatory considerations, but had been applied by the High Court in Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 ("Plaintiff M61"), in relation to s 46A(2) of the Act, which conferred a power which, like s 501A(2), was discretionary both in its exercise and the consideration of whether to exercise it.
75 For the purposes of consideration of the exercise of the Minister's power under s 46A(2) of the Act a "non-statutory" process was established whereby the Department assessed whether Australia owed protection obligations to an applicant under the Refugees Convention, subject to a review by an independent contractor. If it were concluded that Australia owed protection obligations, the Department prepared a submission to the Minister for consideration of the exercise of power under either s 46A or s 195A(2) of the Act. In Plaintiff M61, a reviewer considered only one set of claims on which one plaintiff claimed refugee status, and did not refer to another set of claims.
76 The High Court observed that exercise of the power to "lift the bar" under s 46A "on the footing that Australia owed protection obligations to the plaintiff would be pointless unless that determination was made according to the criteria and principles identified in the Migration Act, as construed and applied by the courts of Australia" (at [88]). It concluded at [90], citing Dranichnikov, that failing to address one of the plaintiff's claimed bases for his fear of persecution was a denial of procedural fairness, because "the Minister was not informed about a matter that bore upon the question that the Minister had asked to be considered: whether Australia owed the plaintiff protection obligations".
77 As the respondent submitted, the process of evaluation of claims and review in Plaintiff M61 paralleled the process at issue in Dranichnikov, and the Minister's decision was predicated on implied, if not express, relevant considerations, about which he had sought to be informed. The decision in Plaintiff M61 was not therefore a persuasive basis for holding that statements in Dranichnikov apply to decisions under s 501A(2) of the Act by requiring the Minister, as a matter of procedural fairness, to address all of an applicant's substantive claims and in such manner as to demonstrate that they were accurately understood.
78 The respondent submitted that if the reasoning in Dranichnikov applied in this context, the Minister's failure to understand and hence respond to particular submissions (if established) would not amount to jurisdictional error, because it was not a "fundamental mistake at the threshold" or a "basic misunderstanding" of the case (Dranichnikov at [87]-[88]).
79 The respondent relied on Kirby J's statement in Dranichnikov at [88] that:
it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction. But where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant, the resulting flow is so serious as to undermine the lawfulness of the decision in a fundamental way.
80 The applicant submitted that Kirby J's statement was in conflict with McHugh J's approach in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [83], where his Honour stated:
[W]here the relevant breach is the failure to observe fair decision-making procedures, the bearing of the breach upon the ultimate decision should not itself determine whether the constitutional writs of certiorari and mandamus should be granted. If there has been a breach of the obligation to accord procedural fairness, there is jurisdictional error for the purposes of s 75(v)…
81 McHugh J's statement was directed to whether discretionary relief should be withheld for a breach of s 424A(1) of the Act by failing to provide information to an applicant. While it was conceded that a breach of s 424A(1) of the Act was jurisdictional error, the respondent claimed that a merely technical breach, that could not affect the outcome, had occurred.
82 In contrast, Kirby J's statement in Dranichnikov was directed at the antecedent issue of distinguishing an error of law within jurisdiction from a jurisdictional error. I was not persuaded that the relevant observations were in conflict.
83 As I have found, for reasons set out in detail below, that the applicant has failed to establish that the Minister misunderstood the relevant submissions, it is unnecessary to determine whether the alleged misunderstandings, mischaracterisations or omissions amounted to a fundamental error in defining the applicant's case, sufficient, in Kirby J's terms, to constitute jurisdictional error.
84 The applicant also relied particularly on NAIS v Minister for Immigration and Multicutural and Indigenous Affairs (2005) 228 CLR 470 ("NAIS") in contending that, in the present case, mischaracterisations in the Issues Paper amounted to a defect in procedure, which either thwarted the Minister's consideration of some of the applicant's submissions or constituted a substantial risk which was not overcome, but rather, was reinforced by the content of the reasons.
85 In NAIS, the Refugee Review Tribunal rejected the applicants' application for protection visas. The tribunal held oral hearings in 1998 and 2001 and handed down its decision in 2003. It made some findings adverse to the applicants' credit, apparently based on their demeanour. A majority (Gleeson CJ, Callinan and Heydon JJ) of the High Court held that the tribunal's decision was affected by jurisdictional error.
86 Gleeson CJ observed that four and a half years which elapsed between the tribunal's observations of the applicants' demeanour and its adverse credit findings thereon amounted to inordinate delay. As the tribunal's reasons ignored the question of the time elapsed between the taking of evidence and its final assessment, the impact of the delay could not be known.
87 His Honour stated at [9]: "[w]hat must be kept in mind is that the question concerns the fairness of the procedure that was followed".
88 Gleeson CJ further stated at [10] and [11]:
In a case of failure to give a hearing when a hearing is required, the person complaining of denial of procedural fairness does not have to demonstrate that, if heard, he or she would have been believed. The loss of an opportunity is what makes the case of unfairness. The appellants in this case do not have to demonstrate that the Tribunal's assessment of them probably would have been more favourable if made reasonably promptly. What they have to demonstrate is that the procedure was flawed; and flawed in a manner that was likely to affect the Tribunal's capacity to make a proper assessment of their sincerity and reliability. The procedures required by the Act were designed to give the appellants a reasonable opportunity to state their claims and to have those claims competently evaluated. If the Tribunal, by its unreasonable delay, created a real and substantial risk that its own capacity for competent evaluation was diminished, it is not fair that the appellants should bear that risk. The delay on the part of the Tribunal in the present case was so extreme that, in the absence of any countervailing considerations advanced in the reasons of the Tribunal, it should be inferred that there was a real and substantial risk that the Tribunal's capacity to assess the appellants was impaired. That being so, the appellants did not have a fair hearing of their claims by the Tribunal.
The fact that the impairment resulted from the default of the Tribunal is important. Many events, outside the control and influence of the Tribunal, might occur to make it more difficult to evaluate the claims of an applicant. That does not make the procedure unfair. On the other hand, when the Tribunal, exercising the control over its own procedures given to it by the Act, without explanation or justification, and without any fault of an applicant for review, draws out those procedures to such an extent that its capacity to discharge its statutory obligations is likely to be materially diminished, and there is nothing in the Tribunal's reasons to displace that likelihood, then a case of procedural unfairness arises.
89 Callinan and Heydon JJ discussed the applicable statutory framework and observed (at [171]) that, as the respondent conceded, s 425(1) of the Act "by implication, refers to a hearing where the evidence given is to be given proper, genuine and realistic consideration in the decision subsequently to be made…"
90 In response to the argument that delay would breach the principles of natural justice only where it denied an interested party a proper opportunity to present its case, their Honours stated (at [172] and [173]):
The answer to these arguments is that unfairness can spring not only from a denial of an opportunity to present a case, but from denial of an opportunity to consider it. Failure by the Tribunal to consider a case can arise not only from obstruction by the Tribunal of its presentation but also from self-disablement by the Tribunal from giving consideration to that presentation by permitting bias to affect its mind: either way the case is prevented from having a fair impact on the Tribunal's mind. Another way in which the Tribunal can disable itself from giving consideration to the presentation of a case arises where it permits so much time to pass that it can no longer assess the evidence offered. That is what happened here. The first respondent contended that the appellants could not succeed in the absence of findings that "delay by the Tribunal actually resulted in a material failure to analyse the oral evidence of the Appellants". That finding ought to be made because it can be inferred from the delay that, in the absence of contrary evidence, the Tribunal had deprived itself of its capacity to do so, and there is no contrary evidence.
The circumstances of this case are specific to the Refugee Review Tribunal.
91 Their Honours also observed that "[t]his is in our opinion a very exceptional case" (at 174]).
92 The applicant submitted that in the present case, the mischaracterisation in the Issues Paper was a defect in the process that, as in NAIS, impeded or obstructed the Minister from considering the relevant submissions.
93 The applicant nevertheless acknowledged that:
Some caution must attach to the use of the phrase 'consideration' to avoid 'a slide into impermissible merits review'. What is of concern is whether there was some failure of process that impeded or prevented the hearing of the submissions, such that in effect they weren't heard at all. That might be because the decision-maker misunderstood the submission or asked themselves the wrong question (as in Dranichnikov); or failed to hear the submission at all; or because of some other procedural issue (such as the delay in NAIS).
94 In NAIS, while the majority held that a jurisdictional error had been made, each of the majority judgments identified, as central to a denial of procedural fairness, an error, flaw or "self-disablement" in the process followed by the tribunal. Callinan and Heydon JJ recognised that whether the delay had vitiated the decision depended on "the statutory framework under which the decision is to be made" (at [156]). Their specific observation was grounded in the acknowledged requirements of a hearing under s 425(1) of the Act. Gleeson CJ said (at [9]): "What must be kept in mind is that the question concerns the fairness of the procedure that was followed." His Honour continued (at [10]): "What they [the applicants] have to demonstrate is that the procedure was flawed; and flawed in a manner that was likely to affect the Tribunal's capacity to make a proper assessment of their sincerity and reliability". Kirby J also emphasised that procedural fairness is not concerned with the merits of the decision and stated that "the "decision" was not reached by a process that was procedurally fair and just to the appellants" (at [102]).
95 The respondent submitted that:
18. The reference by Callinan and Heydon JJ to the "denial of an opportunity to consider" the case does not go so far as to suggest that a misunderstanding of a submission is sufficient to constitute a denial of procedural fairness, unless that misunderstanding is a direct result of a procedural failure.
19. Furthermore, their Honours' formulation was not adopted by any other member of the Court in NAIS, and caution has subsequently been expressed about the language used.
96 In Swift v SAS Trustee Corp [2010] NSWCA 182, Basten JA (with whom Allsop P agreed) observed that the origins of the phrase "proper, genuine and realistic consideration" used by Callinan and Heydon JJ in NAIS lay in merits review, and observed at [47] that "[t]he use of such language in administrative law is not common, no doubt in large part because of the risks of misapplication."
97 Basten JA stated at [45]:
The language of "proper, genuine and realistic consideration" was introduced into administrative law in Khan v Minister for Immigration, Local Government and Ethic Affairs (1987) 14 ALD 291 and Broussard v Minister for Immigration and Ethnic Affairs (1987) 21 FCR 472 at 483 (Gummow J). That which had to be properly considered was "the merits of the case". Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review: Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; 143 LGERA 277 at [79] … Where a decision-maker does address the claim, by reference to the correct power, asking whether he or she did so "properly" or "genuinely", or "realistically" may be taken, inappropriately, as an invitation to assess the correctness of the result, rather than the legality of the process.
98 In SZJSS, the High Court reiterated Bastan JA's caveat, in recognising that the Federal Court had "employed the language" of the need for a "proper, genuine and realistic consideration" to register its emphatic disagreement with the tribunal's factual findings, rather than the process by which it arrived at its conclusions (at [36]).
99 In the context of a decision under s 501A of the Act, insistence on the Minister's "proper, genuine and realistic consideration" of the applicant's submissions should not extend to a requirement that the Minister demonstrate accurate understanding of the submissions, and thus provide the basis for a merits review.
100 In my opinion, the recognition in NAIS that a procedural defect within the decision-maker's control, which denies, or poses a substantial risk of denial of, an opportunity to consider an applicant's submission, was not restricted to any particular statutory regime, and could potentially apply to a decision under s 501A of the Act. For the reasons set out below, however, no such procedural flaw was established in this case.