Procedural Fairness
69 By his third ground, Mr Khodr contended that jurisdictional error was manifested in the Minister's failure to afford him an opportunity to respond on particular matters.
70 As earlier stated, the Minister imputed to Mr Khodr the holding of various beliefs about under-age marriage. At [82] of his reasons the Minister set out his concern that if Mr Khodr "were to continue to espouse these views or act on these views in Australia" he may encourage other members of the Australian community "to participate in conduct that is forced marriage and otherwise illegal by the laws of Australia".
71 The Minister then (at [83]) noted that Mr Khodr's most recently declared employment in Lebanon was that of a teacher of the Quran in a Mosque and that all of his declared employments had been in Islamic educational institutions, as a teacher, supervisor or a salesman. At [84] the Minister then said this:
If Mr KHODR's visa is granted and he came to live in Australia and obtained similar employment, I consider that this could provide him with a platform to espouse his views regarding marriage and consummation of marriage with female children, including those under the age of 16, the earliest legal age for marriage in Australia. Were he to secure similar employment, he could have access to community members including minor, male Australian citizen children, whom I find may be vulnerable to influence, the minors due to their age, and all community members, owing to the position of authority held by teachers or instructors.
72 At [85]-[86] the Minister continued (emphasis in original):
I also consider that Mr KHODR would have the opportunity to espouse his views concerning child marriage, and the consummation of such marriages, within his immediate and extended family in Australia, and within other groups such as any social or religious circles he may develop within Australia.
I find that that the promulgation of these views by Mr KHODR has the potential to encourage others to engage in similar conduct, either in Australia, where it is prohibited by law, or abroad. I further consider that Mr KHODR's conduct is not conducive to equality of agency within a spousal relationship nor in the freedom and dignity of the child victim, such values being identified in the Australian values statement. In a document dated 5 November 2017, the values are acknowledged by Mr KHODR who states that he 'underrated' these values and now understands and undertakes to respect these.
73 The Minister then noted that under-age marriage is outlawed in Australia, and that in all States and Territories it is a criminal act to engage in sexual conduct with a child under the age of 16 years (at [87]), whereupon the Minister concluded at [88]:
I find that Mr KHODR's presence in Australia poses a risk to the Australian community in that others may be influenced to believe and act on his views that the marriage to an Australian citizen child and having sexual relations with the child, provided it occurs in a country where that conduct is not outlawed, is moral, lawful, justified and acceptable. While I acknowledge that this risk is low, I nevertheless consider it to be an unacceptable risk associated with the grant of a visa to Mr KHODR.
74 The denial of procedural fairness asserted by Mr Khodr was particularised as:
(a) The Minister relied on the applicant's previous employment in Lebanon with "Islamic educational institutions" as a basis for finding the applicant posed a risk to the Australian community.
(b) The Minister further made a finding that the applicant might espouse his (imputed) beliefs to other vulnerable people in Australia if he obtained similar employment and thereby posed a risk to the Australian community.
(c) The issues of the applicant's employment in Lebanon, his intended employment in Australia (if any) and the possibility the applicant might seek to proselytise on the issue of child marriage in Australia were not put to the applicant for comment.
75 Mr Khodr submitted that the issue of his possible employment in Australia in Islamic educational institutions was never canvassed with him or put to him as a matter that may lead to a refusal of his visa application on character grounds. Furthermore, he contended that, to the extent that the views or beliefs attributed to him by the Minister were an accurate description of his views about the appropriate age for girls to marry in Australia (which he did not accept), there was no evidence to indicate that he had ever sought to proselytise that view or to persuade others to act on it by procuring marriages with under-age girls. He contended that such a proposition was never put to him for comment and that, as that was a proposition on which the Minister relied in finding that he would pose a risk to the Australian community if he were granted a visa, he was denied procedural fairness.
76 The first particular upon which Mr Khodr relies - the Minister's use of information about his employments in Lebanon - may be dealt with briefly. In my view Mr Khodr's reliance on the Minister's use of that information is misplaced. The paragraph in question in the Minister's reasons is [84]. Read fairly, I do not regard the Minister as relying upon the fact that in his prior employments in Lebanon, Mr Khodr had been espousing his beliefs. If the Minister had done that, it may well be the case that Mr Khodr should have been given an opportunity to deal with whether or not he had so conducted himself in those employments. All that I think the Minister did in relation to Mr Khodr's employments in Lebanon is take into account the fact that given his experience in Lebanon as an employee of educational institutions, it was more likely that if residing in Australia, Mr Khodr may obtain work in similar institutions. That greater likelihood was then relied upon by the Minister for the proposition that there was a greater risk that Mr Khodr could have a platform from which to espouse his beliefs. However, there was no obligation on the Minister to provide Mr Khodr with an opportunity to respond to the information the Minister relied upon as to the nature of Mr Khodr's prior employments in Lebanon. That is so because, for reasons I will shortly explain, the Minister's obligation to afford Mr Khodr an opportunity to comment on information that may be adversely utilised by the Minister as a reason or part of the reason to refuse his application for a visa, is governed by s 57 of the Act. Section 57(1)(c) of the Act operated to excuse the Minister from giving to Mr Khodr particulars of the information about his prior employments in Lebanon because that information was given by Mr Khodr to the Minister for the purpose of his application for a visa.
77 There is more merit in the second matter relied upon by Mr Khodr - that the natural justice hearing rule required the Minister to have provided him an opportunity to respond to the concern relied upon by the Minister that, if he were permitted to reside in Australia, he would advocate or proselytise his beliefs so as to pose a risk to the Australian community because "others may be influenced to believe and act on his views" (at [88]).
78 It was not in contest that in deciding under s 501 of the Act to refuse a visa application, the Minister is required to afford a visa applicant procedural fairness. What was primarily in contest on this ground was whether the content of the Minister's obligation to provide procedural fairness was affected by Subdivision AB of Div 3 of Pt 2 of the Act ("Subdivision AB") and, in particular, by s 51A(1) read with s 57, so as to excuse the Minister from being required to give Mr Khodr notice of a particular issue or concern adverse to him and critical to the success of his application in circumstances where the issue or concern was not obviously open on the known material.
79 Mr Khodr denied that the Minister's obligation to accord him procedural fairness was relevantly ousted by the statute. However, before turning to whether and to what extent procedural fairness obligations may have been ousted, it is convenient to deal first with the requirement of the natural justice hearing rule and consider whether Mr Khodr was denied procedural fairness presuming that the content of the Minister's obligation to afford procedural fairness was that required by the common law as implied into the Act but otherwise not relevantly ousted by the Act.
80 The procedural fairness obligation imposed by the common law natural justice hearing rule was discussed in the reasons of Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [29] and also [32]. Their Honours there endorsed the following observations made by Northrop, Miles and French JJ in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, which they extracted at [29] as follows:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
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.
(Emphasis added by Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ)
81 The procedural fairness obligation there specified addressed two separate but related incidents of the requirement to provide an affected person with a fair opportunity to be heard. The first is that the person be given an opportunity to comment or respond to adverse material put before the decision-maker "from other sources", that is, material received from sources other than the affected person. The second incident is the requirement upon the decision-maker to identify to the person affected any issue or conclusion critical to the decision which is "not apparent from its nature or the terms of the statute" or "which would not obviously be open on the known material".
82 Those two incidents of the obligation to provide an affected person with a fair opportunity to be heard reflect observations made in Kioa v West (1985) 159 CLR 550. The first incident reflects observations made by Brennan J, whilst the second reflects separate and additional observations made by Mason J. So much was noted in the following statement made by French CJ, Gummow, Hayne, Crennan and Kiefel JJ in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [19] (references omitted):
Brennan J in Kioa v West said that, in the ordinary case, an opportunity should be given to a person affected by a decision to deal with any adverse information that is "credible, relevant and significant". That approach has more recently been confirmed in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs. Mason J in Kioa v West went further. In his Honour's view the common law would require the decision-maker to bring the critical issue or factor on which the decision was likely to turn to the attention of the person. Brennan J's approach would not deny that this may be necessary in a particular case.
83 In Degning v Minister for Home Affairs (2019) 270 FCR 451 at [12], after referring to Alphaone and SZBEL, Allsop CJ (with whom Collier J agreed at [43]) summarised the common law position by observing that a person affected was "entitled to have his mind directed to the critical issues or facts on which the decision was likely to turn unless the recognition of the issue was, from the material with which he was provided, an obvious and natural conclusion to draw". His Honour continued (at [13]):
One should look at the whole of the circumstances including the documents given to [the affected person] to assess whether he had his mind directed to the critical issues or factors on which the decision was likely to turn and to be informed of the nature and content of relevant material. In that assessment, it is relevant to assess what is or is not an obvious or natural evaluation of the material which need not be the subject of particular attention being drawn. The ultimate touchstone is fairness.
84 Further, as to the nature of the obligation to direct the mind of the affected person to the critical concerns of the decision-maker, in BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [162] I said this:
Bearing in mind that the guiding principle is one of fairness (VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82; at [28] (Allsop J, with whom Gyles and Conti JJ agreed on this point)), the obligation upon the delegate to notify [the affected person] of the critical issues on which the decision was likely to turn cannot have been discharged at the level of generality for which the Minister contended. The critical issues to be considered and any adverse information relied upon by the delegate needed to be identified at a level of specificity which gave meaning to the opportunity to respond: SZMUF v Minister for Immigration and Citizenship [2009] FCA 182 at [22] (Flick J).
85 I turn then to consider whether the Minister provided Mr Khodr procedural fairness in accordance with the content of the natural justice hearing rule.
86 Any obligation upon the Minister to have identified his concern that Mr Khodr would advocate his beliefs in Australia, with the consequent risk to the Australian community that others would act on his views, only arose if that issue or concern may be regarded as critical to the decision made by the Minister. It was not contended on behalf of the Minister that that issue was not an issue critical to the decision to refuse the grant of the visa. In my view, the reasons provided by the Minister demonstrate that whilst the issue was not necessarily determinative, it was an important issue in the Minister's exercise of his discretion and of sufficient criticality to engage the obligation in question. The criticality of the issue is sufficiently demonstrated by reference to [124] and [125] of the Minister's reasons. The risk of harm to the Australian community posed by Mr Khodr espousing his views was one of the two factors identified by the Minister at [125] as outweighing countervailing considerations and resulting in the Minister exercising his discretion to refuse Mr Khodr's application for a visa.
87 Mr Khodr is right to contend that he was given no notice of the Minister's concern that he would advocate his beliefs in Australia with consequential risk for the Australian community. There were various communications between the Department and Mr Khodr, and between the Department and Mr Khodr's migration agent. A notice of intention to consider refusing the application was provided to Mr Khodr on 9 October 2017. That notice did identify various concerns held by the Minister relating to Mr Khodr's marriage and the age of Mrs Khodr upon their marriage and upon giving birth to two of their children. Mr Khodr was notified that those matters might constitute past or present conduct indicating that he was not of good character. Mr Khodr's migration agent made submissions in response to the notice. As indicated already, Mr Khodr was interviewed by an officer of the Department on 9 November 2017. It was from the answers there given to questions directly put to Mr Khodr that the Minister imputed to Mr Khodr the various beliefs that he did. There was no suggestion made to Mr Khodr in that interview that he had advocated for his beliefs and sought to influence others, and no indication of any concern that he may advocate his beliefs in Australia. Mr Khodr's migration agent provided further submissions regarding the record of interview including by raising issues about its accuracy. More than a year later, the Department issued a "request for further information regarding possible visa cancellation ([sic refusal]) under s 501(1) of the Migration Act". The notice provided Mr Khodr with a copy of Ministerial Direction No 79 and invited him to comment. Further submissions were made on Mr Khodr's behalf in response to that notice. A further notice was sent to the applicant on 27 May 2019. That notice included information referrable to the age of consent in Australia. Further submissions in response were provided on behalf of Mr Khodr.
88 Those communications from the Department directed Mr Khodr to various concerns held by the Department and provided him with an opportunity to respond to those concerns. A concern that Mr Khodr would advocate his views in Australia was not raised. It is not surprising that that issue was not canvassed in the submissions made on Mr Khodr's behalf, the available inference being that neither Mr Khodr nor his migration agent appreciated that any such concern existed.
89 The Minister did not contend that the concern in question was put to Mr Khodr in its terms. However, the Minister did say that Mr Khodr was on notice that one of the matters that the Minister may take into account in deciding whether to exercise his discretion to refuse the visa was the protection of the Australian community, including whether Mr Khodr represented a risk of harm to individuals and groups in the Australian community. In support of that contention, the Minister referred to the correspondence from the Department to Mr Khodr of 6 March 2019 in which a copy of Ministerial Direction 79 was enclosed. The correspondence advised Mr Khodr that the Minister was not bound by Direction 79 but that that Direction provided a broad indication of the types of issues that the Minister was likely to take into account in deciding whether to refuse Mr Khodr's visa application. Mr Khodr was invited to comment.
90 Direction 79 is a sizeable document of some 33 pages which addresses a large number of topics. The submissions made by the Minister pointed to some of the content of Part B of Direction 79. The introduction to Part B identifies three "primary considerations" in deciding whether to refuse a non-citizen's visa. One such consideration is the "protection of the Australian community from criminal or other serious conduct". That consideration is then dealt with in more detail and Direction 79 specifies that when considering the protection of the Australian community, decision-makers should have regard to the principle that the Government "is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct non-citizens". The Direction then states that decision-makers should also give consideration to the nature and seriousness of the non-citizen's conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. There then follows a section (on which the Minister's submissions specifically relied) in which guidance is provided to decision-makers for assessing the risk to the Australian community:
11.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(2) In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
ii. evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii. the duration of the intended stay in Australia.
(4) Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
91 It is notable that in considering the risks to the Australian community, what Direction 79 seems to direct attention to is the risk of the non-citizen engaging in "further criminal or other serious conduct".
92 I would accept that by reason of his attention being drawn to Direction 79, Mr Khodr was on notice that it was possible that the Minister may refuse his application by reason of a concern to protect the Australian community from the risk of harm occasioned by Mr Khodr engaging in "further criminal or other serious conduct". However, in the absence of the Minister specifying the conduct or the further conduct which may be the basis of the particular concern, or the circumstances otherwise making that basis obvious, I do not accept that the Minister's obligation to direct Mr Khodr to the particular concern in question was discharged. As I stated in BMF16 by reference to the observation of Flick J in SZMUF v Minister for Immigration and Citizenship [2009] FCA 182, the issue "needed to be identified at a level of specificity which gave meaning to the opportunity to respond". As I also observed in BMF16 at [165] by reference to the facts of that case, it would not be sufficient for a decision-maker to merely identify a broad topic "leaving it to [the person affected] to anticipate and address every conceivable issue that might possibly arise" in relation to that topic.
93 At best, all that was identified to Mr Khodr was that his prior serious conduct may give rise to a concern held by the Minister that if that conduct was repeated whilst he resided in Australia, the Australian community would be put at risk. There was no prior conduct drawn to Mr Khodr's attention other than his conduct in and surrounding his marriage to Mrs Khodr. No attention was drawn to Mr Khodr's beliefs and there was no hint given to Mr Khodr that his beliefs would be treated as conduct. It was not suggested to Mr Khodr that he had previously advocated his beliefs at all or, more particularly, done so in an attempt to influence others into action and there was no suggestion of that from the known material. To adopt the language of Allsop CJ, in Degning at [36] and [38] (in a case where a visa was cancelled under s 501 because of a specific concern and the Minister relied on the general terms of Direction 65, the predecessor to Direction 79 ), "[Mr Khodr] was entitled to have the issue drawn to his attention" and it was "unfair not to direct [Mr Khodr] to this issue" in the context of the "common law requirement of procedural fairness or natural justice [being] rooted in the common law's inhering demand for fairness in the way power is exercised".
94 As may already be apparent, I am not persuaded that the Minister was relieved of the obligation to identify his specific concern to Mr Khodr because it was "apparent from its nature or the terms of the statute" or "would [have been] obviously…open on the known material". Neither its nature nor the terms of the statute made the particular concern held by the Minister apparent. I note that the position may well have been different if Mr Khodr had been notified that the statutory criteria to be applied by the Minister was that in s 501(6)(d)(iv), which relevantly provides that a person does not pass the character test if, in the event that the person were allowed to enter or to remain in Australia, there is a risk the person would "incite discord in the Australian community or in a segment of that community".
95 Nor is there a basis for a conclusion that the particular concern of the Minister was obviously open on the known material. The Minister did not contend that it was and did not point to any material upon which that conclusion could be founded. The Minister's decision identifies two matters upon which he relied to come to the view that Mr Khodr may advocate his beliefs with consequent risk to the Australian community if he were permitted to reside in Australia. The first matter was that Mr Khodr held the beliefs imputed to him by the Minister and the second was that Mr Khodr had been employed in Lebanon in Islamic educational institutions. There was no material before the Minister which established or from which an inference could legitimately be drawn that, either within those educational institutions or elsewhere, Mr Khodr had been involved in advocating his beliefs in an attempt to influence others to act upon them. Bearing in mind that the "ultimate touchstone is fairness", I do not accept that an obvious or natural evaluation of the known material objectively demonstrates that Mr Khodr's mind was directed to the issue in question.
96 I then turn to consider the Minister's submission that, by reason of the provisions of Subdivision AB, the content of the Minister's procedural fairness obligation did not include a requirement to identify to Mr Khodr an issue critical to the Minister's decision.
97 That submission was made relying on two provisions of Subdivision AB - s 51A and s 57 - the relevant terms of which are as follows:
s 51A Exhaustive statement of natural justice hearing rule
(1) This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
…
s 57 Certain information must be given to applicant
(1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or part of the reason:
(i) for refusing to grant a visa; or
(ii) for deciding that the applicant is an excluded fast track review applicant; and
(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and
(c) was not given by the applicant for the purpose of the application.
Note: Excluded fast track review applicant is defined in subsection 5(1).
(2) The Minister must:
(a) give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and
(c) invite the applicant to comment on it.
98 The Minister contended that s 57 is an exhaustive statement of what the natural justice hearing rule required in relation to adverse information that the Minister must give to the visa applicant. That submission recognised, as is well accepted by authority, that s 51A (as well as counterpart provisions such as s 422B(1) of the Act) only has effect in ousting the natural justice hearing rule in relation to a matter which is dealt with by both the natural justice hearing rule and a provision of Subdivision AB: Saeed at [35]-[42]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [34]-[35] (Bell, Gageler and Keane JJ); and BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at [31] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon JJ).
99 In SZMTA, referring to s 422B(1) and (2) and citing Saeed at [41]-[42] and [78], Bell, Gageler and Keane JJ said at [35] that "[t]he 'matters' to which the sub-sections refer are the discrete subject matters of the provisions. The discrete subject matter of each provision is indicated by, but not limited to, the terms of each provision". The reasoning in SZMTA at [27]-[37] was subsequently described as recognising that an incident of the obligation of procedural fairness can fall outside the scope of the discrete subject matter of a provision like s 57: BVD17 at [31].
100 It is necessary then to consider whether the incident of the obligation of procedural fairness which Mr Khodr contends the Minister failed to provide him, falls within or outside of the discrete subject matter dealt with by s 57.
101 The two separate but related incidents of the natural justice hearing rule are referred to above at [81]. The authorities referred to at [80] and [82] underscore the separate and distinct nature of each incident of the obligation.
102 Relying on BHL19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 929 at [122]-[125] (Thawley J), the Minister contended that s 57 is an exhaustive statement of what the natural justice hearing rules requires in relation to adverse information that the Minister must give to the visa applicant. I would agree that the incident of the natural justice hearing rule which requires that the affected person be given an opportunity to comment or respond to adverse material obtained from other sources, is encompassed within the "matter" dealt with by s 57 of the Act. However, what was implicit in the submission made for the Minister, what is crucial to its success and not addressed in BHL19, is that another discrete matter is dealt with by s 57, namely, the requirement upon a decision-maker to identify to the person affected any issue or conclusion critical to the decision which is not apparent from its nature or the terms of the statute and which would not obviously be open on the known material. In my view that incident of the natural justice hearing rule is not a discrete subject matter of s 57 of the Act.
103 The matter dealt with by s 57 by reference to its subject was described by French CJ, Gummow, Hayne, Crennan, Kiefel JJ in Saeed at [42] as "the provision of information more generally relevant and adverse, for comment". The term "information" utilised in s 57 (and its counterparts) has been described as not extending "beyond knowledge of facts or circumstances relating to material or documentation of an evidentiary nature": see SZMTA at [28] and SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
104 The "matter" dealt with by s 57 bears a close resemblance to the requirement of the natural justice hearing rule that the person affected be given an opportunity to comment or respond to adverse material put before the decision-maker from other sources. The incident of the natural justice hearing rule, which requires the decision-maker to identify to the person affected any issue critical to the decision, is not dealing with the provision for comment of adverse material or documentation of an evidentiary nature. That incident of the natural justice hearing rule is not directly concerned with providing an affected person with an opportunity to respond to adverse information obtained from sources other than that person. Its primary concern is that a person affected be provided with a fair opportunity to comment on adverse inferences or conclusions which a decision-maker may make on the basis of information, howsoever obtained, including where obtained from the person affected.
105 That subject is not a discrete "matter" with which s 57 deals. If it were a subject matter with which s 57 deals, the protections afforded to an affected person by the natural justice hearing rule would be substantially diminished. In particular, adverse inferences could be drawn and adverse conclusions could be made by a decision-maker on the basis of information provided by the affected person without that person being given any opportunity to comment. That would be so irrespective of whether the inference drawn or conclusion reached was obviously open on the material provided to the decision-maker. The facts of this case demonstrate the potential for such unfairness. More severe examples of unfairness can readily be contemplated. Highly prejudicial inferences could be drawn from information which, if an opportunity to explain had been given, would be revealed to be entirely innocuous. In the absence of clear language, s 57 should not be construed as intended to have such a consequence. As was stated in Saeed at [25], the imposition of limitations upon or extinguishment of the obligation to accord procedural fairness requires a clear expression of legislative intent.
106 For those reasons, I reject the Minister's contention that the requirement to have identified to Mr Khodr a critical issue for consideration was ousted by the operation of s 51A and s 57. The materiality of the failure to accord procedural fairness was not in issue. Accordingly, Mr Khodr succeeds on this ground of review.