Haoucher v Minister for Immigration and Ethnic Affairs

Haoucher v Minister for Immigration and Ethnic Affairs - [1990] HCA 22 - HCA 1990 case summary — Zoe

[6]

The notion of a "legitimate expectation" which gives rise to a prima facie entitlement to procedural fairness or natural justice in the exercise of statutory power or authority is well established in the law of this country (see, e.g., F.A.I. Insurances Ltd. v. Winneke [1] ). The notion is not, however, without its difficulty. For one thing, the word "legitimate" is prone to carry with it a suggestion of entitlement to the substance of the expectation whereas the true entitlement is to the observance of procedural fairness before the substance of the expectation is denied (see, e.g., Salemi v. MacKellar [No. 2] [2] ; Kioa v. West [3] ). In that regard, there is much to be said for preferring the phrase "reasonable expectation" which has often been used in judgments in this Court. For another thing, the vagueness of the phrase "legitimate expectation", which enables it to be used as a convenient label for a broad category of circumstances which will give rise to a prima facie obligation to accord procedural fairness, may convey an impression of comprehensiveness with the result that the absence of an identified legitimate expectation is wrongly seen as a legal mandate for disregarding procedural fairness in any case where no legal right in the strict sense is involved. Regardless of whether one can identify a right in the strict sense or a legitimate expectation, the requirements of procedural fairness must be observed in any case where, by reference to "the particular statutory framework" (see Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation [4] ), it is proper to discern a legislative intent that the donee of governmental executive power or authority should be bound by them. There is a strong presumption of such a legislative intent in any case where a statute confers on one person a power or authority adversely and directly to affect the rights, interests, status or legitimate expectations of a real or artificial person or entity in an individual capacity (as distinct from merely as a member of a section of the general public). The rationale of that strong presumption is to be found not so much in sophisticated principle as in ordinary notions of what is fair and just. In that regard, it is important to bear in mind that the recognition of an obligation to observe procedural fairness does not call into play a body of rigid procedural rules which must be observed regardless of circumstances. Where the obligation exists, its precise content varies to reflect the common law's perception of what is necessary for procedural fairness in the circumstances of the particular case. In some cases where the requirements of procedural fairness are applicable, nothing less than a full and unbiased hearing of each affected individual's case will satisfy them. In other circumstances, something less may suffice. Thus, the circumstances of a particular case may be such that procedural fairness does not require that each person affected be accorded an effective opportunity of being personally heard before a decision is made but nonetheless requires that the decision-maker be, and appear to be, personally unbiased (see, e.g., Jackson, Natural Justice, 2nd ed. (1979), p. 100). Indeed, the law seems to me to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognized as applying generally to governmental executive decision-making (cf. Halsbury's Laws of England, 4th ed. (1989), vol. 1(1), par. 85) and where the question whether the particular decision affects the rights, interests, status or legitimate expectations of a person in his or her individual capacity is relevant to the ascertainment of the practical content, if any, of those requirements in the circumstances of a particular case and of the standing of a particular individual to attack the validity of the particular decision in those circumstances.

[8]

Kioa v. West establishes that the Minister for Immigration and Ethnic Affairs ("the Minister") is bound to observe the requirements of procedural fairness in deciding to make a deportation order under the Migration Act 1958 Cth ("the Act"). The reason why that is so is that such an order adversely and directly affects the rights, interests, status and legitimate expectations of the prospective deportee in his or her individual capacity. In the ordinary deportation case, there is no basis for drawing a line between the actual making of a deportation order and the carrying of the order into effect so as to require observance by the Minister of distinct requirements of procedural fairness at the stage of actual deportation in addition to the observance of such requirements before making the order. The deportation, in such a case, represents no more than the natural consequence of the making of the order (see, in particular, Act, s. 63 (formerly s. 20)). The position may, however, be different if events intervene between the making of the deportation order and actual deportation to call into play a new and different process of decision-making, such as where the procedure for challenging the justification of the deportation order before the Administrative Appeals Tribunal ("the Tribunal") is invoked. If, in such a case, the challenge to the justification of the deportation order fails and the order is affirmed by the Tribunal, the ensuing deportation will proceed as a matter of course and will ordinarily involve no further decision-making process attracting the requirements of procedural fairness. If, however, the challenge to the justification of the deportation order is successful and the Tribunal recommends to the Minister that the order be revoked, a new and quite distinct stage of decision-making has been reached. At that stage, the Minister is under a statutory obligation to reconsider the order in the light of the Tribunal's recommendation (see Act, s. 180 (formerly s. 66E); Barbaro v. Minister for Immigration and Ethnic Affairs [5] ; and Minister for Immigration and Ethnic Affairs v. Pochi [6] ). Then, for the first time, the Minister will be required to decide whether he or she should override the recommendation of an independent tribunal and direct that the deportation proceed.

[10]

The question whether, regardless of the context provided by settled government policy, a person named in a deportation order is entitled to be heard as a matter of course before the Minister rejects a recommendation of the Tribunal that the order be revoked was not fully canvassed in argument in the present proceedings. Clearly enough, such a recommendation by the Tribunal neither destroys the efficacy of the deportation order nor entitles the person named in the order to demand that the whole process begin afresh. On the other hand, there is much to be said for the view that where a person has made the effort and incurred the expense involved in persuading the Tribunal to make findings and recommendations in his or her favour, after a full hearing on the merits in proceedings in which the Minister has been fully heard as an active opposing party, there will arise a new and distinct legitimate or reasonable expectation that the Minister will accept the findings and abide by the recommendation of that Tribunal. If that be so, then quite apart from the context provided by published government policy, the Minister was, in all the circumstances of the present case, under an obligation to observe procedural fairness in determining whether the deportation order made in respect of the appellant should stand. Those requirements of procedural fairness would, if applicable, at least have included the requirement that the appellant be given an appropriate opportunity of being heard in relation to the question whether the circumstances of the case were such that the Minister would be justified either in overriding relevant findings or prognostications of the Tribunal, such as an assessment of the risk of recidivism, or in rejecting the Tribunal's recommendation that the deportation order be revoked. In the absence of full argument, however, it is preferable to decide the appeal on the narrower ground propounded on behalf of the appellant, namely, the effect of a published, considered statement of government policy prescribing procedural steps to be followed in a case such as the present.

[11]

The proceedings before the Tribunal in the present case were instituted and determined in the context of a government policy relating to the deportation of persons convicted of criminal offences. That policy provided that "recommendations of the Tribunal should be overturned by the Minister only in exceptional circumstances and only when strong evidence can be produced to justify [the] decision". It also provided for the publication by the Minister (by tabling in the Parliament) of "a statement of his/her reasons" for overturning such a recommendation. For so long as that published policy was operative, a deportee would reasonably be expected to see it as providing a critical reference point in determining the desirability and effectiveness of an application to the Tribunal for review of a deportation order. It has not been suggested on behalf of the respondent Minister that that policy was treated as inapplicable to the circumstances of the appellant's case. That being so, it is clear that the Minister engaged in a quite distinct and well-defined process of executive decision-making before determining that the Tribunal's recommendation "should be overturned". That decision-making process dealt with issues ("exceptional circumstances"; "strong evidence") which had never before arisen for consideration. It was in the course of the Minister's purported discharge of the statutory obligation to reconsider the deportation order in the light of the Tribunal's recommendation. It directly affected the appellant's rights, interests, status and legitimate expectations in his individual capacity. Indeed, it directly related to him alone and effectively determined the course of his future life. If it had not been challenged in these proceedings, it would presumably have given rise to the publication under privilege of a ministerial statement which would almost inevitably be damaging to the appellant's reputation. In those circumstances, the justice of the common law demanded that the appellant be accorded an opportunity of being heard on the questions whether the "recommendations of the Tribunal should be overturned" by reason of "exceptional circumstances" and whether "strong evidence can be produced to justify" such an overturning of the Tribunal's recommendation. The failure to accord to the appellant such an opportunity vitiated the Minister's decision that the deportation order should stand.

[103]

The justice and wisdom of extending procedural fairness to legitimate expectations as well as to existing rights and interests seem obvious. The renewal of licences is a good example. Many statutes have made the right to engage in business, employment, social and other activities dependent on the grant of a licence issued by a government official or public authority. These licences are often granted for fixed periods. They must be renewed from time to time if the activities which they regulate are to continue. Failure to obtain the renewal of a licence may have a devastating effect on a person, disrupting plans for the future, causing economic harm, or jeopardising reputation: cf. de Smith's Judicial Review of Administrative Action, 4th ed. (1980), pp. 223-224. In many cases, therefore, refusal to renew a licence has the same effect as the revocation of a licence. Unless private rights are to be preferred to public realities, there is no sense, let alone justice, in the common law rules of natural justice giving protection to an existing licence but denying it to a legitimate expectation of the renewal of a licence. This does not mean that the content or operation of the rules of natural justice is the same in relation to the renewal of a licence as it is in relation to the revocation of a licence. The renewal of a licence, like its original grant, will often involve the formulation and application of policy, the allocation of public funds or resources, or the competing claims of others. Public administration would be seriously impaired in some cases if a person, seeking the renewal of a licence, was entitled to be put into possession of all the considerations affecting the renewal of the licence. In such cases, it may not even be possible, consistently with good administration, to give a hearing to the person affected. Nevertheless, many cases involving the legitimate expectation of the renewal of a licence raise issues substantially the same as those involved in cases concerning the revocation of a licence. No valid reason exists, therefore, for applying the rules of natural justice to the revocation of licences but not to their renewal.

[115]

Even with the benefit of the Minister's statement of reasons, it is still not clear what matters he regarded as constituting "exceptional circumstances" or "strong evidence". As Lee J. pointed out in the Full Court, "the Minister appears to have regarded it as an exceptional circumstance that he had formed a view contrary to that of the Tribunal". No doubt the term "exceptional circumstances" is vague. But since the policy declares that recommendations of the A.A.T will be overturned only in exceptional circumstances and only when strong evidence can be produced to justify the Minister's decision, mere disagreement with the findings or recommendation of the A.A.T. does not constitute "exceptional circumstances". The reference in the policy to "exceptional circumstances" and "strong evidence produced to justify" a departure from the recommendation of the A.A.T. suggests that the policy contemplated that ordinarily the Minister would not reject a recommendation unless further evidence came into his or her possession. It would be going too far, however, to hold that the Minister will always breach the policy in refusing to follow a recommendation of the A.A.T. unless he or she is in possession of evidence which was not before the A.A.T. The terms of the policy should not be read pedantically. If the critical findings of the A.A.T. were unreasonable, for example, the Minister would be entitled to assert that the case was exceptional and that strong evidence existed to overturn the A.A.T.'s recommendation. In the present case, however, the findings of the A.A.T. were based and reasonably open on the evidence. Whether or not the Minister disagreed with them, they cannot be described as unreasonable. Moreover, it is not easy to see how the four matters to which I have referred constituted "exceptional circumstances" or "strong evidence". In the end, however, it is for the Minister and not for the courts to say whether there were "exceptional circumstances" and "strong evidence" available to justify his decision.

At a glance

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Decision date

Before

Source

Judgment (117 paragraphs)

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