KOMATHI DAVID v MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS

On behalf of the Minister, Ms Henderson disputes that Ms Smidt's failure to reveal the information she had obtained about public events in Sri Lanka amounted to a denial of procedural fairness. In relation to the obligation of a decision maker to reveal information obtained otherwise than from an applicant and detrimental to the applicant's case, she draws a distinction between information about public events and personal information. She contends that the disclosure obligation is limited to personal information. In support of this contention, she cites the words of Mason J in Kioa v West (1985) 159 CLR 550 at 587: "In the ordinary course of granting or refusing entry permits there is no occasion for the principles of natural justice to be called into play. The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter." (Emphasis added.) Conclusions I do not think the obligation to reveal relevant information is as limited as Ms Henderson suggests. In Kioa the relevant information was personal to the applicant; consequently, it was natural for Mason J to use the language he did. Neither Wilson J nor Deane J indicated the nature of the information that must be revealed. But the other majority Justice, Brennan J, discussed the content of the obligation in a way that does not support the suggested limitation. He referred at 612-613 to the chameleon-like quality of natural justice and quoted the well-known statement of principle by Tucker LJ in Russell v Duke of Norfolk [1949] 1 All ER 109 at 118: "The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth". Brennan J also quoted the statement of Lord Morris of Borth-y-Gest in Furnell v Whangarei High Schools Board [1973] AC 660 at 679 about natural justice being "but fairness writ large and juridically. It has been described as 'fair play in action'". Brennan J added other citations, including from earlier decisions of the High Court of Australia. The point he was making was that the best way of determining what is required in a particular case is to ask oneself what would be fair, having regard to the nature of the decision and the circumstances under which it must be made. If that approach is taken, it seems erroneous to limit the present disclosure obligation to matters personal to Ms David. Ms Smidt had to determine whether or not Ms David was a "refugee" within the meaning of the Convention relating to the Status of Refugees. That question required her to consider whether Ms David had, at the date of her decision, a well-founded fear of persecution, for one or more of the reasons stipulated in the Convention, if returned to Sri Lanka: see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. Having regard to the relevant date, Ms Smidt was correct in thinking it necessary to take into account political developments in Sri Lanka between the date of the oral hearing and her decision. It is apparent from her reasons that she thought these developments important. Ms Smidt thought that, even if Ms David retained a fear of persecution, the recent developments tended to refute the view that the fear was well-founded. In Ms Smidt's opinion, the recent political developments were facts antithetic to the case Ms David was putting to the Tribunal. But they were facts not previously canvassed. They could hardly have been. Most of the relevant developments, as Ms Smidt accepted them, occurred after the oral hearing; many of them after the written submissions. No doubt, Ms Smidt would have read and considered any additional written submission that RACS might have lodged, dealing with political developments since the earlier submissions. But passive willingness to do this was not enough. Ms Smidt had an obligation to disclose. Neither Ms David nor RACS knew what information Ms Smidt had received about events in Sri Lanka. They did not even know when she would be likely to reach a decision. They could not be expected to provide a running commentary on the Sri Lankan news reports.