The third complaint
55 The third complaint differs in nature to the complaints reflected in grounds 1 and 4. The third complaint is that the Minister erred by failing to notify the applicant of the issues set out at paragraphs 70, 72, 74, 76, 80 and 81 of the reasons for decision and giving the applicant an opportunity to respond to those issues. The ground is based on the principles of legal unreasonableness and procedural fairness.
56 As submitted by the applicant, the Department was engaged with the applicant in relation to the decision under review for a period of about 22 months: from 18 January 2019, when the applicant's visa was cancelled, until 27 October 2020, when the Minister decided not to revoke the cancellation. It must be accepted that, during that period, the applicant was given an opportunity to put information and submissions to the decision-maker. In the initial representations on 31 January 2019 and in subsequent representations throughout that period, the applicant raised his claims to fear harm if returned to the DRC. During the 22-month period, the Department sought a response from the applicant about adverse information that had been received by the Department, but not about the applicant's claim to fear harm. There was no lack of time or opportunity for the Department to seek elaboration or substantiation of the applicant's claim to fear harm. The Department did not do so and did not inform the applicant that findings may not be able to be made on his claims without elaboration or substantiation. The question raised by the ground of review is, in effect, whether the failure to do so was legally unreasonable (in that there was a legally unreasonable failure to exercise a discretionary power), or was a breach of the requirements of procedural fairness, or there was a constructive failure to exercise jurisdiction.
57 As a general principle, in the context of a decision under s 501CA(4), the Minister is not under a "legal duty, referable to jurisdictional error, to ask for further representations from the applicant or to make inquiries into the representations that were made": Maioha at [48] (Rares and Robertson JJ), cited with approval in Navoto at [96] and [100]; see also Kioa v West (1985) 159 CLR 550 (Kioa v West) at 587 (Mason J). Those statements reflect the well-established principle that the procedural fairness does not usually require the decision-maker to expose their mental processes or provisional views to comment before making the decision in question: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Alphaone) at 591-592; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) at [29]-[32] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ); Minister for Immigration v SZGUR (2011) 241 CLR 594 (SZGUR) at [9] (French CJ and Kiefel J, with whom Heydon and Crennan JJ agreed).
58 Conversely, it is well established that, if the decision-maker intends to take into account material information obtained from a source other than the person affected by the decision, the person affected should be given an opportunity to deal with that information: Kioa v Westat 587 (Mason J), 628 (Brennan J); Alphaone at 590-591. Further, in SZBEL, the High Court concluded that the Refugee Review Tribunal (reviewing a decision of the Minister's delegate refusing a protection visa) denied the applicant procedural fairness in failing to notify the applicant that the Tribunal might reach its decision by reference to an issue other than those considered dispositive by the Minister's delegate. In doing so, the High Court referred with approval to the following statement of the Full Federal Court in Alphaone (at [32]):
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.
59 In the present case, the Minister did not take into account adverse material from a source other than the applicant. Nor was this a case in which the Minister's decision was being reviewed and the reviewing tribunal failed to inform the applicant of the relevant issues. Rather, the applicant's complaint is that the Minister did not put to the applicant that, in respect of an issue that might be determinative (the applicant's claim to fear harm on return to the DRC), that the information and submissions provided by the applicant required elaboration and substantiation if they were to be accepted.
60 In Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123, the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) considered whether and in what circumstances a failure by the Refugee Review Tribunal to make inquiries about information provided to it by an applicant for review might constitute jurisdictional error, whether as a legally unreasonable failure to exercise a discretionary power, or a failure to afford procedural fairness, or as a constructive failure to exercise jurisdiction. The plurality affirmed the principle that the Tribunal is not under a general duty to undertake its own inquiries in addition to information provided to it by the applicant (at [1]). In the course of its reasons, the plurality observed that (at [25], citations omitted):
… It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case.
61 The contention raised by the applicant by ground 3 is not supported by existing authority, although it is not easily rejected. At its centre is the proposition that, in the circumstances of this case, the procedure followed by the Minister in making a personal decision under s 501CA(4), which was not reviewable by the Tribunal, was unfair. The asserted procedural unfairness arose from the circumstances that:
(a) the applicant made claims as to his experiences in his country of birth, the DRC, which supported a claim that he feared harm if returned to that country;
(b) the backdrop to the applicant's claims, being the notorious atrocities that occurred in Rwanda between the Hutus and the Tutsis in 1994 and the flow-on effects of those events into the DRC (then called Zaire), where many Hutu refugees fled, whilst not substantiating the applicant's claims, provide context that lends some seriousness to the applicant's claims;
(c) the Minister, through the Department, communicated with the applicant to seek submissions on adverse material;
(d) the period during which the Minister made his decision allowed ample time for the Department or the Minister to notify the applicant that a reason for rejecting the applicant's claims to fear harm might be the lack of detail and documentary support for the claims; and
(e) the Minister did not reject the applicant's claims, but concluded that the applicant had provided insufficient detail and substantiation to enable the Minister to make a finding about the claims.
62 There is no doubt that the Minister was required to accord procedural fairness to the applicant in connection with the making of a decision under s 501CA(4). The relevant question is "what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made": Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [30] (Kiefel, Bell and Keane JJ). As observed by Brennan J in Kioa v West (at 614):
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.
63 In that regard, the requirements of procedural fairness are not rigid. In Kioa v West, Mason J stated (at 585):
…the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations…
64 A number of features of the legal framework within which a decision under s 501CA(4) is made can be noted.
65 First, a decision not to revoke the cancellation of a visa under s 501(3A) may have devastating consequences for the previous visa holder, resulting in their removal from Australia: c.f. Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 at [3] per Allsop CJ.
66 Second, and as noted earlier, a decision made personally by the Minister under s 501CA(4) (as in this case) is not reviewable by the Tribunal. Accordingly, the only opportunity that the applicant for revocation has to be heard is within the decision-making process conducted by the Minister under s 501CA (c.f. Twist v Randwick Municipal Council (1976) 136 CLR 106).
67 Third, s 501CA(3)(a) requires the Minister to give to the revocation applicant "relevant information" (being information that the Minister considers would be the reason or a part of the reason for making the original cancellation decision) and to invite the revocation applicant to make representations about revocation.
68 Fourth, s 501CA(3)(b) requires the Minister to invite the person to make representations about revocation of the original decision within the period and in the manner stipulated by the regulations. The regulations provide for a relatively short period in which such representations are to be made, being 28 days.
69 Fifth, the Minister has an implicit power to seek elaboration or clarification of issues from the revocation applicant, a power that the Minister exercised in the present case (through the Department).
70 Sixth, s 501G requires the Minister to give the revocation applicant a statement of the reasons for the decision.
71 Within that statutory framework, can it be concluded that procedural fairness requires the Minister to seek elaboration and substantiation of the applicant's representations if the Minister is minded to reject the claims because of the lack of elaboration and substantiation? I have not been referred to any decision that goes that far in the context of a statutory power such as s 501CA(4). As stated by French CJ and Kiefel J in SZGUR (at [9]), the Tribunal reviewing a migration decision may, "in the exercise of its discretion, invite an applicant for review to make supplementary submissions in relation to apparent inconsistencies, contradictions or weaknesses in his or her case which have been identified by the Tribunal". However, their Honours did not state that the failure to do so would involve a failure to afford procedural fairness.
72 In light of the authorities referred to above, I am constrained to conclude that the failure by the Minister to seek elaboration and substantiation of the applicant's claims to fear harm, in circumstances where the Minister ultimately rejected the claims because of a lack of elaboration and substantiation, was not legally unreasonable, a breach of the requirements of procedural fairness or a constructive failure to exercise jurisdiction. Applying Maioha and Navoto, the Minister was not under a legal duty, referable to jurisdictional error, to ask for further representations from the applicant or to make inquiries into the representations that were made. The requirements of procedural fairness were discharged by the statutory procedure by which the applicant was invited to make representations and did so. In my view, this is not a case in which the Minister failed to make an obvious inquiry about a critical fact, the existence of which was easily ascertained, such that the Minister constructively failed to exercise jurisdiction. For those reasons, I reject ground 3.