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[2015] HCA 40
respondent. Appeal dismissed with costs.
A Tamil man from Sri Lanka who came to Australia by boat claimed he would be harmed if sent home. After an interview with one government reviewer who said she would decide his case, a different reviewer took over without telling him and refused the claim, saying he was not believable based only on a recording and papers. The High Court said this was unfair. The law requires a fair chance to put your case. Because seeing and hearing someone can matter when deciding if they are telling the truth, especially through an interpreter, swapping reviewers without notice or giving him a chance to ask for another interview breached procedural fairness. The Court made clear that talking about 'legitimate expectations' confuses things; the test is simply what fairness required in these circumstances. The appeal by the Minister was dismissed.
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The first respondent, a Sri Lankan national of Tamil ethnicity, arrived in Australia by boat on 7 November 2010 at Christmas Island, an excised offshore place. As an offshore entry person without a visa he was an unlawful non-citizen and was detained under s 189(3) of the Migration Act 1958 (Cth). Section 46A prevented him from making a valid application for a Protection (Class XA) visa. On 21 January 2011 he requested a Refugee Status Assessment (RSA) to determine whether Australia owed him protection obligations under the Refugees Convention. A delegate interviewed him about his claims of feared harm from the Eelam People's Democratic Party and Sri Lankan authorities arising from his Tamil ethnicity, perceived support for the Liberation Tigers of Tamil Eelam, and his campaigning for a particular politician.
On 29 April 2011 the delegate made an adverse RSA. The first respondent then requested an Independent Merits Review (IMR). On 16 January 2012 he was interviewed by the first reviewer, who told him she would undertake a fresh rehearing of his claims, make a recommendation to the Minister on whether he was a refugee, and consider all information he provided including any further material. For undisclosed reasons the first reviewer became unavailable. Without informing the first respondent, a second reviewer assumed responsibility for the IMR. On 25 July 2012 the second reviewer recommended that the first respondent not be recognised as a person to whom Australia owed protection obligations. The second reviewer did not conduct an interview but relied on the written materials, the Christmas Island interview transcript, submissions, country information, and the audio recording and transcript of the first reviewer's interview.
The second reviewer formed a strong adverse view of the first respondent's credibility, particularly rejecting as a "central plank" of his fear of persecution his claimed association with the politician. The second reviewer did not accept that inconsistencies in the account of election-campaign activities were due to memory lapse, confusion or the effects of detention. On that basis the second reviewer found no real chance of persecution for a Convention reason. The first respondent sought judicial review in the Federal Circuit Court. On 14 October 2013 the primary judge (Judge Raphael) dismissed the application, holding that credibility could be assessed from the documents and audio, that there had been a hearing (albeit by the first reviewer), and that no oral hearing was mandated. The Full Federal Court (Flick and Gleeson JJ, Nicholas J concurring) allowed the appeal on 20 October 2014, finding a breach of procedural fairness because the first respondent had a legitimate expectation that the interviewer would decide the matter, was not told of the change, and lost the chance to impress the actual decision-maker with the genuineness of his claims or to make submissions on how the review should continue. The Minister was granted special leave and appealed to the High Court. Kiefel, Bell and Keane JJ (with Gageler and Gordon JJ agreeing) dismissed the appeal with costs, holding that the process was unfair.
The High Court held that the second reviewer's process breached the implied condition of procedural fairness that conditioned the Minister's statutory powers. The Court first rejected the utility of "legitimate expectation" as a criterion. It cited earlier observations in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 and Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 that the phrase is apt to mislead, poses more questions than it answers, and should be disregarded. The real question is what fairness requires in the circumstances having regard to the legal framework. Recourse to legitimate expectation may distract from that inquiry.
The Court emphasised that the RSA and IMR processes, as explained in Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319, inform the Minister's powers to lift the bar under s 46A or grant a visa. Because those processes prolong detention, they must be procedurally fair. Procedural fairness here required a reasonable opportunity to present an affirmative case and answer adverse material—an opportunity that a reasonable assessor or reviewer ought fairly to give in the totality of the circumstances. The concern is with fair decision-making procedures rather than the character of the outcome.
The Court distinguished Lam. In Lam the applicant lost no opportunity to advance his case; the Department's failure to contact a carer after foreshadowing it did not cause practical injustice. Here, by contrast, the first respondent had been given an interview on the explicit basis that the interviewer would make the recommendation and consider his demeanour and responses. The unnotified change meant the opportunity became, in retrospect, only an opportunity to present a case by record to an unknown assessor. This changed the nature of the opportunity given. Credibility was central. The second reviewer made strong adverse findings on inconsistencies that he said were not attributable to memory lapse or detention effects. An interview by the actual decision-maker would have allowed direct questioning, clarification of confusion (especially through an interpreter), and observation of demeanour—matters long recognised as important in credibility assessments.
The Court accepted there is no universal rule requiring an oral hearing. Yet the fact that the first reviewer had conducted an interview was a practical indication of what fairness required. Once the process changed, elementary fairness required that the first respondent be told so he could be heard on how the review should now proceed, including by requesting a further oral hearing. Nicholas J was right to say the first respondent was deprived of the chance to apply for an oral hearing before the second reviewer, an application the Minister would have been hard pressed to resist. The breach was material because it could not be concluded that the outcome would inevitably have been the same; the first respondent was deprived of the possibility of a successful outcome. The Full Court was therefore correct to declare the decision made in breach of procedural fairness. The appeal was dismissed with costs.
Before WZARH Australian law contained conflicting strands on procedural fairness in administrative refugee reviews. Lam had made clear that a public authority's promise of a particular procedure could affect the practical content of fairness, but that the ultimate question remained whether unfairness occurred and that no practical injustice arose if the applicant lost no opportunity to advance his case. Cases such as Chen v Minister for Immigration and Ethnic Affairs stood for the proposition that natural justice does not mandate an oral hearing in every case. The Full Federal Court in Abujoudeh v Minister for Immigration and Multicultural Affairs and MZXDH v Minister for Immigration and Multicultural Affairs had upheld reviews completed by different officers where the applicant had been informed of the change. The notion of legitimate expectation, inherited from English law, had been treated by some courts as a useful tool for ascertaining the content of fairness even while the High Court had begun to criticise it in Lam and Plaintiff S10/2011.
After WZARH the law is clearer. Legitimate expectation is to be disregarded as a touchstone; it adds nothing and risks distraction. The criterion is whether the procedure adopted afforded the reasonable opportunity to be heard that a reasonable and fair repository of the power would give in the circumstances. Where an administrative process begins with an interview on the footing that the interviewer will decide, an unnotified change in decision-maker that deprives the applicant of the chance to address the actual decision-maker (including by demeanour) will ordinarily require notice and an opportunity to make submissions on how the altered process should continue. The focus is on practical injustice in the form of the lost possibility of a successful outcome rather than on whether the ultimate decision would necessarily have differed. The decision reinforces that procedural fairness in the IMR context is conditioned on the Minister's statutory powers and operates as a jurisdictional constraint. It confirms that while no oral hearing is universally required, the particular features of a case—especially credibility determinations in claims involving interpreters—may make an interview by the actual reviewer necessary to fairness.
"[T]he phrase 'legitimate expectation' when used in the field of public law either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded." (Gummow, Hayne, Crennan and Bell JJ in Plaintiff S10/2011, adopted in WZARH). In plain English: stop using "legitimate expectation" as the legal test—it confuses everyone and does not help decide what a fair process looks like.
"when a public authority promises that a particular procedure will be followed in making a decision, fairness may require that the public authority be held to its promise. ... Expectations created by a decision-maker may affect the practical content of the requirements of fairness in a particular case." (Gleeson CJ in Lam, quoted in WZARH). Translation: if the government tells you how it will handle your case, it may have to stick to that promise if changing would be unfair; what you were led to expect can shape what fairness demands, but the real question is still whether the process was unfair.
"The concern of procedural fairness, which here operates as a condition of the exercise of a statutory power, is with procedures rather than with outcomes." (Gageler and Gordon JJ). Plain English: the court cares whether the process was fair, not whether the final decision was correct. If the process denied you a fair hearing, that is enough to set the decision aside unless it could not possibly have made a difference.
"It is … not to the point to ask whether the [decision-maker's] factual conclusions were right. The relevant question is about the [decision-maker's] processes, not its actual decision." (quoting SZBEL). Translation: we do not retry whether the reviewer was right to disbelieve the claimant; we ask only whether the reviewer went about deciding in a fair way.
"The one situation in which oral hearings are most often thought to be desirable is where questions arise as to a witness's credibility. An oral hearing will often assist in the resolution of credibility issues by allowing the decision-maker to interact directly with the witness by asking the witness questions, considering his or her answers, and having regard to the witness's demeanour." (Nicholas J, approved). In plain English: when the whole case turns on whether someone is telling the truth, letting the decision-maker see and hear them in person is often the fairest way to decide.
This precedent is triggered where an administrative review process (particularly IMR or similar refugee-assessment mechanisms) is commenced on the explicit or implicit footing that the person conducting an interview will also make the substantive recommendation or decision, an interview occurs, the original reviewer becomes unavailable, and a different reviewer completes the process without notifying the applicant of the change and without giving the applicant an opportunity to be heard on how the altered process should continue. It is especially relevant where credibility is a central issue, inconsistencies in oral accounts exist, the applicant is communicating through an interpreter, and the new reviewer relies on transcript and audio alone to form strong adverse demeanour-based or credibility-based findings. The precedent applies whenever the change in procedure alters the nature of the opportunity previously extended so that the applicant loses the chance personally to convince the actual decision-maker or to request supplementation of the record. It does not apply where the applicant is told of the change and given the chance to make submissions or request a further hearing, or where the original process never involved an interview or any representation that the interviewer would decide. It is confined to situations in which the statutory or administrative framework conditions the relevant power on observance of procedural fairness and the breach deprives the person of the possibility of a successful outcome.
The judgment itself treats Plaintiff M61/2010E as correctly characterising the RSA and IMR processes as informing the Minister's statutory powers and therefore conditioned on procedural fairness. It treats Lam as distinguishable on the basis that in Lam the applicant lost no opportunity to advance his case, whereas here the change in reviewer meant the first respondent did lose a meaningful opportunity. It approves the approach in SZBEL that the relevant question is about the decision-maker's processes, not the correctness of the factual conclusions. It endorses Nicholas J's observation that oral hearings are most often desirable on credibility issues so that the decision-maker can interact directly and observe demeanour. It cites Re Refugee Review Tribunal; Ex parte Aala for the proposition that the rationale of procedural fairness is fair decision-making procedures rather than the character of the emergent decision. It adopts the statement from Plaintiff S10/2011 that legitimate expectation should be disregarded. The reasoning of Gageler and Gordon JJ reinforces the materiality test as whether the breach deprived the person of the possibility of a successful outcome, consistent with Gleeson CJ's "practical injustice" language in Lam. The Court endorses the Full Federal Court's conclusion that the present facts constituted an example of the type of case in which failure to adhere to a statement of intention as to procedure results in unfairness justifying judicial intervention. No subsequent authority is discussed because this is the authoritative statement; the judgment positions itself as clarifying and simplifying the law by removing legitimate expectation as a distraction and refocusing on the objective requirements of fairness in the totality of circumstances.
The judgment leaves open precisely when an oral hearing will be required in the absence of an initial interview or representation that the interviewer will decide. It notes there is no universal rule but does not catalogue the circumstances in which demeanour observation is indispensable. It does not decide what weight should be given to logistical considerations or the strength of justification when an applicant, once notified of a change, requests a further hearing; those questions are expressly left as hypothetical. The Court does not explore the position where the second reviewer forms no adverse credibility view or where the inconsistencies are so clear on the papers that an interview could not possibly assist. It leaves untouched the question of whether the outcome would have been different had the first respondent been told of the change and declined to request a further interview. The precise boundaries of "practical injustice" in cases where the possibility of a successful outcome is said to be remote but not nonexistent remain for future decision. The judgment also does not address whether the principles apply with equal force to other administrative schemes outside the offshore-entry IMR context. These matters will require later courts to apply the core proposition—that fairness is assessed by what a reasonable reviewer ought to have done in the circumstances—without the crutch of legitimate expectation.
MINISTER FOR IMMIGRATION AND BORDER PROTECTION APPELLANT
Minister for Immigration and Border Protection v WZARH [2015] HCA 40 4 November 2015 S85/2015
G T Johnson SC with B D Kaplan for the appellant (instructed by Sparke Helmore Lawyers)
S E J Prince with P W Bodisco for the first respondent (instructed by Thomas McLoughlin Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Minister for Immigration and Border Protection v WZARH
Administrative law - Procedural fairness - Refugee Status Assessment - Independent Merits Review ("IMR") - Where first reviewer conducted interview with first respondent but did not complete IMR - Where second reviewer completed IMR without interview but with regard to transcript and audio recording of first reviewer's interview - Where first respondent not informed of change in identity of reviewer - Where second reviewer formed adverse view of first respondent's credibility - Whether first respondent denied procedural fairness.
Words and phrases - "legitimate expectation", "opportunity to be heard", "oral hearing", "procedural fairness", "unfairness".
KIEFEL, BELL AND KEANE JJ. The respondent is a national of Sri Lanka of Tamil ethnicity. On 7 November 2010, he entered Australia by boat arriving at Christmas Island. At that time, Christmas Island was an "excised offshore place" and the respondent was an "offshore entry person", as then defined in s 5(1) of the Migration Act 1958 (Cth) ("the Act"). As the respondent did not hold a visa to enter Australia, he was an unlawful non‑citizen as defined in s 14 of the Act, and so, upon his arrival at Christmas Island, he was taken into detention pursuant to s 189(3) of the Act. Because the respondent was an offshore entry person, s 46A of the Act as it then stood prevented him from making a valid application for a Protection (Class XA) visa. On 21 January 2011, he requested a Refugee Status Assessment ("RSA") as to whether he was a person to whom Australia owed protection obligations under the Refugees Convention. This process was described in this Court's decision in Plaintiff M61/2010E v The Commonwealth. In response to the respondent's request, a delegate of the appellant, the Minister for Immigration and Border Protection ("the Minister"), interviewed the respondent in respect of his claim to refugee status. The respondent claimed that he was owed protection as he feared harm at the hands of the Eelam People's Democratic Party and the Sri Lankan authorities because of his Tamil ethnicity, his perceived support of the Liberation Tigers of Tamil Eelam, and his having campaigned in Sri Lanka for a particular politician. On 29 April 2011, the Minister's delegate made an adverse assessment of the respondent's claim to refugee status. On 20 May 2011, the respondent requested an Independent Merits Review ("IMR") of the RSA. On 16 January 2012, the respondent was interviewed by an independent merits reviewer. It will be convenient, though strictly speaking inaccurate, to refer to this individual as the First Reviewer. At this interview, the First Reviewer told the respondent that she would "undertake a fresh re‑hearing of [his] claims" and "mak[e] a recommendation as to whether [he is] found to be a refugee", and that "this will be given to the Minister … for consideration." She concluded the interview by telling the respondent that she would consider "all the information that [he has] provided" and "any further articles or information", then "make [her] recommendation." For undisclosed reasons, the First Reviewer became unavailable to complete the IMR. At some point after 16 January 2012, and unbeknown to the respondent, another individual assumed responsibility for the completion of the IMR. This individual is the second respondent to this appeal. It will be convenient to refer to him as the Second Reviewer. On 25 July 2012, the Second Reviewer found that the respondent did not meet the criteria for a Protection (Class XA) visa as set out in s 36(2) of the Act and, accordingly, recommended that the respondent not be recognised by the Minister as a person to whom Australia owed protection obligations. The Second Reviewer did not interview the respondent, but based his decision on a consideration of written materials, including the respondent's original applications, a transcript of his interview with the departmental officer on Christmas Island, the submissions made by his advisors on his behalf, country information, and a recording and transcript of his interview with the First Reviewer. The Second Reviewer formed an adverse view of the credibility of the respondent. In particular, the Second Reviewer rejected what he described as "a central plank of [the respondent's] fear of persecution", namely his association with the particular politician, on the basis of inconsistencies in his account of his activities in various election campaigns in Sri Lanka. Importantly, the Second Reviewer did not accept "that this kind of error was due to memory lapse or confusion, nor indeed to the effects of detention". Having formed this strong adverse view of the respondent's credibility, the Second Reviewer proceeded to find that: "there is not a real chance that [the respondent] would be persecuted, now or in the reasonably foreseeable future for reasons of political opinion … ethnicity or membership of a particular social group … [and] that his fear of persecution for a Convention reason is not well‑founded." On 20 September 2012, the respondent filed an application in the Federal Circuit Court for judicial review of the decision of the Second Reviewer. On 14 October 2013, the primary judge (Judge Raphael) dismissed the respondent's application. The respondent then appealed to the Full Court of the Federal Court of Australia. On 20 October 2014, the Full Court allowed the appeal and declared that the Second Reviewer arrived at his decision in breach of the rules of procedural fairness. The reasons of the primary judge Before the primary judge, the respondent argued that the Second Reviewer's failure to conduct an interview with him as part of the IMR meant that he was denied procedural fairness. In support of that argument, the respondent referred to the fact that because the Second Reviewer did not conduct an interview, the Second Reviewer did not sight certain scars that the respondent claimed were evidence of torture to which he had been subjected. The Minister relied upon the general proposition, supported by the decision of the Full Federal Court in Chen v Minister for Immigration and Ethnic Affairs, that: "It is beyond argument that the rules of natural justice do not mandate in all cases an oral hearing for the person affected." The primary judge upheld the Minister's submission, holding that it was not procedurally unfair for the Second Reviewer to make his recommendation without conducting an interview with the respondent. In this regard, the primary judge concluded that questions as to the respondent's credibility could properly be resolved against him by the Second Reviewer by reference to the documents and audio evidence available to him. The primary judge said: "This is not a case that [sic] a matter is considered solely on the papers. There had been a hearing. The [Second Reviewer] had heard the tape of that hearing and read the transcript." The primary judge also rejected the respondent's submission that the IMR process lacked procedural fairness because the Second Reviewer had failed to take into account a relevant consideration, namely the scars on the respondent's arm. The reasons of the Full Court The respondent appealed to the Full Court on the basis that the primary judge erred in failing to hold that the respondent had been denied procedural fairness. The two grounds advanced in support of that contention were that the Second Reviewer did not conduct an interview with the respondent; and that visible scarring on the respondent's arm (a relevant consideration) was not taken into account by the Second Reviewer in making his decision. The Full Court (Flick and Gleeson JJ in a joint judgment, Nicholas J in a separate concurring judgment) rejected the second ground, but upheld the first ground and allowed the appeal. The second ground has not been pursued further, and it is unnecessary to say any more about it. Flick and Gleeson JJ accepted that there is no universal requirement for an oral hearing before an administrative decision is made. Their Honours said that: "Subject to any statutory provision to the contrary, any conclusion as to whether the rules of natural justice require an oral opportunity to be heard can perhaps be put no more specifically than by inquiring whether a fair opportunity to be heard requires such a hearing." Before pursuing that inquiry, however, their Honours observed that the respondent had a legitimate expectation that the person by whom he had been interviewed would be the person to make the recommendation to the Minister. Their Honours said that, although the notion of "legitimate expectation" as the criterion for an entitlement to procedural fairness from an administrative decision‑maker has been criticised, it remains a useful tool when considering "what must be done to give procedural fairness to a person whose interests might be affected by an exercise of power". In their Honours' view, the respondent had been put in a position where he believed that he would have an opportunity to make oral submissions to the decision‑maker, and, without warning or opportunity to object, he was denied that opportunity. Flick and Gleeson JJ noted that, in the present case, unlike in Abujoudeh v Minister for Immigration and Multicultural Affairs and MZXDH v Minister for Immigration and Multicultural Affairs, on which the Minister relied, the respondent had not been informed of the change in the identity of the person making the recommendation to the Minister, so that he had no reason to believe that the recommendation would be made by anyone other than the First Reviewer, by whom he had been interviewed. Their Honours concluded that: "If for whatever reason a person conducting an independent merits review becomes unavailable, a claimant is at the very least entitled to be heard before his legitimate expectation is defeated, by being given an opportunity to make submissions as to how the review process should continue." Their Honours also held that this was not a case in which an opportunity to make submissions was "little more than a formality". Their Honours said: "Listening to a tape recording or reading a transcript is no substitute for extending to [the respondent] the opportunity which he was first given and which he was led to believe he would be given, namely an opportunity to impress upon the person who made the recommendation the merits and genuineness of his claims." Nicholas J held that, because the respondent was not told of the change in the identity of the decision‑maker, he was denied an opportunity to make submissions as to how the IMR should proceed; and this was unfair. Nicholas J rejected the Minister's submission that the outcome would not have been different even if the Second Reviewer had conducted an oral hearing with the respondent, because the respondent's demeanour at the interview might have led the Second Reviewer to resolve questions of credibility in the respondent's favour. The appeal to this Court On 17 April 2015, Hayne and Gageler JJ granted the Minister special leave to appeal to this Court. The Minister's submissions The Minister seized upon the use by Flick and Gleeson JJ of the concept of "legitimate expectation" in the course of their consideration of whether there had been a denial of procedural fairness. The Minister submitted that their Honours treated the notion of "legitimate expectation" as the basis for an entitlement to a particular form of procedure including an interview. In this regard, the Minister placed particular reliance on this Court's decision in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam. The Minister submitted that the Full Court erred in concluding that the respondent had been denied procedural fairness without first establishing why the denial of a second interview was procedurally unfair. The respondent's submissions The respondent submitted that Flick and Gleeson JJ did not apply the concept of "legitimate expectation" as the sole basis for their conclusion that the respondent had been denied procedural fairness. The respondent submitted that all members of the Full Court correctly concluded that he was denied the opportunity to advance his case afforded by an interview with the person who actually made the recommendation to the Minister; and that the opportunity was denied without his being heard on the question. This was said to be sufficient reason to conclude that he had been denied procedural fairness. The respondent's submissions should be accepted. Legitimate expectation The use of the concept of "legitimate expectation" as the criterion of an entitlement to procedural fairness in administrative law has been described in this Court as "apt to mislead", "unsatisfactory" and "superfluous and confusing". In Lam, Hayne J observed that the concept "poses more questions than it answers", such as "[w]hat is meant by 'legitimate'?" and "[i]s 'expectation' a reference to some subjective state of mind or to a legally required standard of behaviour?" and "whose state of mind is relevant?" and "[h]ow is it established?". Hayne J concluded that "reference to expectations, legitimate or not, is unhelpful". More recently, in Plaintiff S10/2011 v Minister for Immigration and Citizenship, Gummow, Hayne, Crennan and Bell JJ referred to the discussion of the concept by four members of the Court in Lam, and said that: "the phrase 'legitimate expectation' when used in the field of public law either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded." The position has been made sufficiently clear that it is not necessary for this Court to engage again in discussion of the concept of "legitimate expectation" in administrative law or to trace its progress from its controversial origins, to its tentative acceptance in Australian law, to its rejection as a touchstone of the requirement that a decision‑maker accord procedural fairness to a person affected by an administrative decision. The "legitimate expectation" of a person affected by an administrative decision does not provide a basis for determining whether procedural fairness should be accorded to that person or for determining the content of such procedural fairness. It is sufficient to say that, in the absence of a clear, contrary legislative intention, administrative decision‑makers must accord procedural fairness to those affected by their decisions. Recourse to the notion of legitimate expectation is both unnecessary and unhelpful. Indeed, reference to the concept of legitimate expectation may well distract from the real question; namely, 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. It is to be noted that Flick and Gleeson JJ concluded that the "fundamental change to the administrative process being pursued without [the respondent] being alerted to the change" was a failure by the Second Reviewer to observe the requirements of procedural fairness. This conclusion was a sufficient basis for their Honours' decision, which might have been more readily apparent had their Honours not been disposed to deploy the concept of legitimate expectation in their analysis of the issue. The criticism that the Minister made of the reasoning of Flick and Gleeson JJ cannot be made of the reasoning of Nicholas J. His Honour's analysis proceeded on the basis that the issue was whether the respondent had been denied procedural fairness by the alteration in the review process which occurred without his being informed, and as a result of which he lost the possibility of the advantage he may have gained from a consideration of his demeanour at interview. The review process was unfair In considering whether the respondent was denied procedural fairness so as to vitiate the recommendation of the Second Reviewer, two points may be made at the outset. First, it was common ground that the IMR process was required to accord the respondent procedural fairness even though the decision‑making process proceeded under administrative guidelines. Secondly, there is no general rule that procedural fairness requires an administrative decision‑maker to afford a person affected by the decision an oral hearing in every case. Whether an oral hearing is required in order to accord procedural fairness to a person affected by an administrative decision depends on the practical requirements of procedural fairness in the circumstances of the case. In this regard, this Court's decision in Lam does not support the Minister's challenge to the decision of the Full Court. In Lam, the applicant, who held a transitional visa, was notified that consideration was being given to cancelling his visa. In his response to that notification, he submitted that the best interests of his two children, who were Australian citizens, would be adversely affected if his visa were cancelled. Attached to his submission was a letter from his children's carer. A departmental officer then wrote to the applicant requesting the contact details of the carer. The letter stated that the Department wished to contact the carer to assess the impact that cancellation of the applicant's visa would have on his children. The applicant provided the contact details, but no departmental officer made contact with the carer. The Minister cancelled the applicant's visa, and the applicant applied for certiorari to quash the Minister's decision on the basis that he had been denied procedural fairness as a result of the Department's failure to contact the carer and to notify the applicant of that fact. The application for certiorari was refused. In Lam, it was held that a failure by the decision‑making authority to adhere to a foreshadowed line of inquiry may, but will not necessarily, amount to a denial of procedural fairness. The manner in which any given administrative process is conducted may generate expectations on the part of the person affected as to how he or she should present his or her case; in some cases, fairness may require that such expectations be honoured. In this regard, Gleeson CJ said: "when a public authority promises that a particular procedure will be followed in making a decision, fairness may require that the public authority be held to its promise. ... Expectations created by a decision‑maker may affect the practical content of the requirements of fairness in a particular case." (footnote omitted) (original emphasis) The present case is readily distinguishable from Lam. In that case, as Gleeson CJ said, "[t]he applicant lost no opportunity to advance his case" and it was for that reason that no practical injustice was held to have occurred. And Hayne J said: "[The applicant] was afforded a full opportunity to be heard. The Department's letter raised no new matter to be taken into account in making the impugned decision, and it did not divert attention in any way from the relevance of, or weight to be given to, the effect that cancellation of the applicant's visa would have on his children." In the present case, the respondent had been afforded an interview with the concomitant advantage that the individual responsible for making a recommendation to the Minister in relation to his claim to refugee status would be able to use all the information provided by him, including impressions gained from his demeanour at the interview, in coming to a conclusion as to the genuineness of his account. It may be accepted that, as the Minister argued, the respondent was not entitled to insist upon the observance of a particular form of decision‑making process. But that is not to the point. Rather, the questions are whether it was unfair for the Second Reviewer to proceed by reference only to some of the information made available to the First Reviewer and the impressions as to his credibility formed from those materials, and whether it was unfair to deny the respondent the opportunity to be heard on whether the IMR should proceed in that way. We now turn to a consideration of these questions. As to the first of these questions, the Minister accepted that in some circumstances a reasonable opportunity to be heard will involve some form of oral hearing. The Minister also accepted that, in those circumstances, procedural fairness would require the decision‑maker to entertain and give consideration to submissions seeking to establish that an oral hearing is required. The fact that the First Reviewer interviewed the respondent affords, at the very least, some practical indication of what procedural fairness required in the circumstances of this case. An interview in the course of the IMR process provides the reviewer with opportunities for direct questioning of the applicant; for clarification of areas of confusion or poor understanding on both sides; and for the observation of the demeanour of the applicant. Impressions formed by a decision‑maker from the demeanour of an interviewee may be an important aspect of the information available to the decision‑maker. That this is so has long been recognised. The opportunity for a decision‑maker to clarify areas of confusion or misunderstanding, and to form an impression based on personal observation as to whether an applicant is genuinely confused or seeking deliberately to mislead, may be especially important to a fair assessment of a claim to refugee status when English is not the applicant's mother tongue and he or she is obliged to seek to communicate through an interpreter. As Nicholas J rightly said: "The one situation in which oral hearings are most often thought to be desirable is where questions arise as to a witness's credibility. An oral hearing will often assist in the resolution of credibility issues by allowing the decision‑maker to interact directly with the witness by asking the witness questions, considering his or her answers, and having regard to the witness's demeanour." The Full Court was right to conclude that it cannot be said in the present case that the respondent lost no opportunity to advance his case. As was said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs: "It is … not to the point to ask whether the [decision‑maker's] factual conclusions were right. The relevant question is about the [decision‑maker's] processes, not its actual decision." An interview by the Second Reviewer might have made a difference to the outcome of the IMR process. This may be seen from what was involved in any assessment of the respondent's application to be undertaken by the Second Reviewer. The acceptance or rejection of his case was likely to turn, not only upon apparent inconsistencies or uncertainties in his account, but also upon impressions formed about how he had responded to questions about his recollection of events in the recorded interview with the First Reviewer. The benefit to a decision‑maker of seeing a witness advance his or her case should not be exaggerated, but for the reasons already mentioned, it cannot be dismissed as illusory. The respondent could not have been in a worse position if the Second Reviewer had not been disposed, after seeing him responding to questions, to take a more favourable view of his credibility. But he may have been in a better position if the Second Reviewer had formed the impression that he was genuinely doing his best to give truthful evidence in difficult circumstances. As to the second of the questions which arise in this case, for reasons entirely beyond the respondent's control, information available from the interview conducted by the First Reviewer was only partly reflected in the recommendation made to the Minister; and because the respondent was not told of the alteration of the review process, he was denied an opportunity to be heard as to how the changed process might be completed so that he would not be disadvantaged by the change. As Nicholas J rightly said, the respondent: "was deprived of the opportunity to apply for an oral hearing before the [Second Reviewer], an application which … the Minister would have been hard pressed to resist." It is difficult to identify any reasonable basis on which the Second Reviewer could fairly have refused the respondent an opportunity to be heard on the question of how the review process should proceed once that process was altered by the withdrawal of the First Reviewer. Elementary considerations of fairness required that the respondent be informed that the process explained to him by the First Reviewer would not be completed so that he would have the opportunity to be heard on the question of how the process should now proceed. In Lam, Gleeson CJ said: "There are undoubtedly circumstances in which the failure of an administrative decision‑maker to adhere to a statement of intention as to the procedure to be followed will result in unfairness and will justify judicial intervention to quash the decision". The Full Court was right to conclude that the present is an example of such a case. Orders The appeal should be dismissed with costs.
GAGELER AND GORDON JJ. The facts and procedural history are set out in the reasons for judgment of Kiefel, Bell and Keane JJ. We agree with their Honours that the appeal should be dismissed. Plaintiff M61/2010E v The Commonwealth characterised the RSA and IMR processes as processes undertaken to inform the exercise by the Minister of statutory powers to consider whether or not to "lift the bar" to the making of a visa application or to grant a visa in every case where an offshore entry person claims to be a person to whom Australia owes protection obligations under the Refugees Convention. Plaintiff M61/2010E held that, because those processes had the practical effect of prolonging detention of an offshore entry person, the exercise by the Minister of his statutory powers was conditioned on the observance of procedural fairness, with the consequence that those processes must themselves be procedurally fair. Procedural fairness in the RSA and IMR processes requires that an offshore entry person who invokes either process be given a reasonable opportunity to be heard as to whether or not the bar should be lifted or a visa granted. That entails that the person be given a reasonable opportunity to present an affirmative case that he or she is a person to whom Australia owes protection obligations under the Refugees Convention, and to answer material or information which might be thought to suggest otherwise. That requirement necessitates at least that the opportunity to be heard that is given to an offshore entry person in each process is an opportunity which a reasonable assessor or reviewer ought fairly to give in the totality of the circumstances. That standard for compliance derives from the fundamental obligation of the Minister to afford procedural fairness, which conditions the Minister's exercise of the statutory power which the processes inform. To satisfy the condition of procedural fairness, the Minister is obliged to adopt "a procedure which conforms to the procedure which a reasonable and fair repository of the power would adopt in the circumstances". Gaudron and Gummow JJ pointed out in Re Refugee Review Tribunal; Ex parte Aala: "[T]he conditioning of a statutory power so as to require the provision of procedural fairness has, as its basis, a rationale which differs from that which generally underpins the doctrine of excess of power or jurisdiction. The concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures." The concern of procedural fairness, which here operates as a condition of the exercise of a statutory power, is with procedures rather than with outcomes. It follows that a failure on the part of an assessor or reviewer to give the opportunity to be heard which a reasonable assessor or reviewer ought fairly to give in the totality of the circumstances constitutes, without more, a denial of procedural fairness in breach of the implied condition which governs the exercise of the Minister's statutory powers of consideration. Such a breach of the implied condition which governs the exercise of the Minister's statutory powers of consideration is material, so as to justify the grant of declaratory relief by a court of competent jurisdiction, if it operates to deprive the offshore entry person of "the possibility of a successful outcome". That approach to the determination of the existence and consequence of a breach of an implied condition of procedural fairness governing the exercise of a statutory power is wholly consistent with the often-repeated observation of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam that the concern of procedural fairness is to "avoid practical injustice", and with his Honour's conclusion in that case that there was no denial of procedural fairness where "[n]o practical injustice ha[d] been shown". The absence of practical injustice in Lam lay in the fact that "[t]he applicant lost no opportunity to advance his case"; it was not "shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment". Contrary to the submission of the Minister in this appeal, and as has repeatedly been recognised in the Full Court of the Federal Court, Lam is not authority for the proposition that it is incumbent on a person who seeks to establish denial of procedural fairness always to demonstrate what would have occurred if procedural fairness had been observed. What must be shown by a person seeking to establish a denial of procedural fairness will depend upon the precise defect alleged to have occurred in the decision-making process. There are cases in which conduct on the part of an administrator in the course of a hearing can be demonstrated to have misled a person into refraining from taking up an opportunity to be heard that was available to that person in accordance with an applicable procedure which was otherwise fair. To demonstrate that the person would have taken some step if that conduct had not occurred is, in such a case, part of establishing that the person has in fact been denied a reasonable opportunity to be heard. Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given. That is to highlight one of the confusions that can be introduced when the concept of "legitimate expectation" is used as a basis for determining the content of procedural fairness. By focussing on the opportunity expected, or legitimately to have been expected, the concept can distract from the true inquiry into the opportunity that a reasonable administrator ought fairly to have given. The former is relevant only in so far as it bears on the latter. As Gleeson CJ put it in Lam: "[T]he creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed." The present case is one in which the procedure adopted in the IMR process undertaken in relation to the respondent can be seen itself to have failed to afford the respondent a reasonable opportunity to be heard. The process as commenced was in accordance with a procedure under which interview and assessment were to be undertaken by the First Reviewer alone. The process as concluded was in accordance with a procedure under which the assessment was undertaken by the Second Reviewer. That change of procedure occurred after the respondent was interviewed by the First Reviewer and after the respondent's advisors made submissions to the First Reviewer. It occurred without notice to the respondent. Had the procedure at the outset been one in accordance with which an interview was to be conducted by the First Reviewer and an assessment was to be made by another administrator, it would be difficult to conclude that the respondent would not have been given a reasonable opportunity to be heard. There is no universal rule that procedural fairness requires the adoption of a procedure which affords an oral hearing to a person who claims to be a person to whom Australia owes protection obligations under the Refugees Convention, much less an oral hearing before the administrator who is to make the ultimate assessment and recommendation. The respondent and his advisors, being alerted to the procedure, would have been in a position to tailor their evidence and submissions accordingly. The problem is that the change of procedure changed the nature of the opportunity which had previously been given to the respondent. The opportunity that had been given was an opportunity personally to convince an identified individual who was to make the assessment, including by responding to specific questions which that person raised. The opportunity became, in retrospect, an opportunity to present a case to an unknown assessor by way of a record of oral evidence and of written submissions. The significance of that change in procedure is to be gauged by reference to the nature of the assessment which it became the responsibility of the Second Reviewer to perform, rather than by reference to the reasoning which the Second Reviewer came to adopt in the performance of that responsibility. Not only did issues of credit potentially arise in relation to the evidence given by the respondent as to past events, but to undertake the assessment necessarily required consideration of the subjective state of mind of the respondent as a person fearing persecution for a Convention reason. The Second Reviewer ought reasonably to have considered that the evidence and submissions presented to the First Reviewer could reasonably be expected to have differed in their coverage, detail and emphasis had the respondent and his advisors been aware that the First Reviewer would not be making the assessment. In light of the change in procedure that had occurred, fairness required that the Second Reviewer give to the respondent notice of the changed procedure, an opportunity to supplement the written submissions previously made on his behalf, and an opportunity to request supplementation of the record of interview by further oral evidence. If the respondent had made a request to supplement the record of interview by further oral evidence, questions would have arisen as to whether the Second Reviewer ought in fairness to have acceded to that request and as to the form and scope of any further hearing which ought in fairness to have been given. The answers to those questions would turn on considerations reasonably to have been taken into account by the Second Reviewer in considering the request. They would centrally include the strength of the justification advanced in support of the request. They would also potentially include logistical considerations. To explore those issues now would be to engage in a hypothetical inquiry. In failing to give the respondent notice of the changed procedure, the Second Reviewer failed to afford the respondent a reasonable opportunity to be heard. There is no basis on which it can be concluded that the decision made by the Second Reviewer (in the form of a recommendation to the Minister) would inevitably have been the same if the respondent had been given a reasonable opportunity to be heard. The Full Court of the Federal Court was therefore correct to declare that the decision of the Second Reviewer was made in breach of procedural fairness.
Minister for Immigration and Border Protection
WZARH
Appeal dismissed with costs.