Minister for Immigration and Citizenship v Maman

Procedural Fairness - General Principles 30 The appeal does not involve any novel question of law. But a number of general principles should be expressly recognised. It is the application of these principles that leads to the Minister's appeal being dismissed. 31 First, there are no universal rules as to the content of the rules of natural justice applicable to all factual or statutory situations: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 504. Kitto J, after having referred to the "particular statutory framework" there proceeded to observe: ... By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject-matter: cf. Ridge v. Baldwin ([1963] 2 WLR 935 at 947. As Tucker L.J. said in Russell v. Duke of Norfolk ([1949] 1 All ER 109), in a passage approved by the Privy Council in University of Ceylon v. Fernando ([1960] 1 All ER 631 at 637), there are no words which are of universal application to every kind of inquiry and every kind of tribunal: "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" ([1949] 1 All ER at 118). What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances. His Honour continued: And it is not a one-sided business. What is a fair opportunity to allow the taxpayer in a given case is a question which by its very nature forbids an answer in disregard of the interests of other people. This is particularly true where, as here, the statute giving rise to the duty of decision expressly recognizes and aims to protect the interests of others which may come into competition with those of the taxpayer. For this reason the proposition cannot be maintained that even assuming that the Board is legally bound to determine the reference in a case under s. 136 in accordance with the substantial requirements of justice it must disclose all that it has learned about the affairs of other companies. How much it should disclose is a question which this Court ought not to attempt to answer in the abstract. On the opposite hypothesis, that the Board is not bound legally to act in a quasi-judicial manner, all questions as to disclosing information to the taxpayer are questions of pure discretion; but the Board's sense of fairness and responsibility will no doubt make the decision as to how the discretion should be exercised practically indistinguishable from that which it would have to make if faced with a legal necessity to conform to natural justice. See also: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552 per Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ; R v Mackellar; Ex parte Ratu (1977) 137 CLR 461 at 476 per Mason J. 32 Second, a further general principle is that procedural fairness generally requires the disclosure of relevant adverse information that is "credible, relevant and significant": Kioa v West (1985) 159 CLR 550 at 615. Brennan J there expressed the principle as follows: A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: … The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. As Lord Diplock observed in Bushell v. Environment Secretary ([1981] AC at 97): To "over-judicialise" the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair. Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account: [(1985) 159 CLR at 628-629.] See also: Executive Director of the Office of Liquor and Gaming Regulation v Cayneston Pty Ltd [2011] QCA 193 at [52] per McMurdo P (Fraser and White JJA agreeing). 33 Third, there are limitations upon the duty to disclose information which is "credible, relevant and significant". One obvious limitation arises where the interface between questions of national security collide with general principles of procedural fairness: cf. Bush, C, "National Security and Natural Justice" (2008) 57 AIAL Forum 78. Indeed, it was in such a context that Madgwick J in Leghaei v Director General of Security [2005] FCA 1576 concluded that there was a duty to accord procedural fairness to the subject of an intended adverse security assessment but that "the content of procedural fairness is reduced, in practical terms, to nothingness": at [88]. An appeal was dismissed: Leghaei v Director General of Security [2007] FCAFC 37, 97 ALD 516. As recognised by Brennan J in Kioa v West, one further - and perhaps less dramatic - limitation is where the information otherwise required to be disclosed is confidential. Similarly, Kitto J in Mobil Oil recognised that natural justice is not a "one-sided business" and that "the interests of other people" need also be taken into account. In Johns v Australian Securities Commission (1993) 178 CLR 408 at 472, McHugh J recognised that the "need to preserve the confidentiality of the ASC's investigation does not exclude procedural fairness, but reduces its content … perhaps in some circumstances to nothing". 34 But the mere fact that a document may contain confidential information does not dictate that it not be disclosed, either in whole or in part. And the opposition of an opposing party to the disclosure of personal but confidential information does not of itself operate so as to preclude disclosure (cf. Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 at [22], 225 CLR 88 at 98 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) and cannot of itself strip the opposing party of his common law entitlement to be heard. 35 Even where there may be substantial reasons in favour of preserving the confidentiality of information, the rules of procedural fairness may require disclosure of adverse information. By way of example, in Canterbury Building Society Ltd v Baker [1979] 2 NSWLR 265 an inquiry was being conducted into the affairs of the plaintiff building society. An inspector, Mr Lusted, had been appointed under the Co-Operation Act 1923 (NSW) to examine into and report upon the affairs of the society. Sheppard J, when sitting in the then Administrative Law Division of the Supreme Court, concluded that Mr Lusted's report should be disclosed. In doing so, His Honour reasoned as follows: But there is one matter which is in the realm of particulars in respect of which I do think the rules of natural justice are not being observed. Mr. Lusted has, as I have mentioned, reported upon the affairs of the society, pursuant to s. 118 (9) of the Act. The delegate has his report, and proposes to use it to assist him in examining the witnesses to be called. He has refused to make the report available to the society or its counsel. It seems to me, from what he has said generally in the transcript, which I have read, that he intends to make use of it and to weigh up what Mr. Lusted has said against what witnesses may say. If the inquiry proceeds in that way, the society will be denied access, not only to information, but also to findings which may adversely affect it in the minds of the delegate and the registrar. Yet it will have no opportunity, really, of correcting what is contained in the report. Counsel for the defendants impressed upon me the need for the preservation of the confidentiality of such a report, and referred to the fact that such a report might be made into the affairs of a building society far larger than the plaintiff here. The making available of that report might lead to its being "leaked" (to use a current expression) to the press or to members of the public. It might be misinterpreted, or its effect may be misunderstood, with the result that the funds, and thus the liquidity of the society, might be placed in jeopardy to the detriment of members and creditors. Counsel referred to the fact that inspectors' reports under the Companies Act might be kept confidential, even though an inspector were to express one of the opinions referred to in s. 222 (1) (g) of the Companies Act (N.S.W.), thus providing a ground upon which the company might be wound up. But the publication of reports made pursuant to Pt. VIA (Special Investigations) of the Companies Act is a matter specifically dealt with in s. 178 (2), (3) and (4). There are no comparable provisions of the Act in question here. Nevertheless, I appreciate the force of the considerations which have been put, and the anxiety of a registrar and a Minister, with the public interest in mind, to keep information of this kind confidential. But it is my conclusion that the rules of natural justice do apply to the proceedings, and I do not see how effect can be given to them, if material is going to be adverted to by the person conducting the inquiry, of which the person who may be affected by the outcome of it is kept ignorant. Problems of confidentiality of documents arise from time to time in court. Sometimes arrangements are made whereby documents are produced only to counsel, or to counsel and solicitors. On other occasions, documents may be produced to parties in return for an undertaking to the court that their contents will not be divulged. The registrar and his delegate are not in the same position as a court to obtain undertakings of this kind, and I am afraid the report must be made available without restriction. But, if the report is adverse to the society, one would not think that officers of the society would want it disclosed any more than would the registrar or the Minister. That, of itself, ought to be a sufficient sanction, once the report is disclosed, to ensure that the terms of it are not widely published. Reference was made to the law of defamation. I can have no concern in relation to that matter. Sometimes the legislature provides that reports of the kind in question here are to be the subject of absolute privilege; sometimes they are left to be governed by the general provisions of the law dealing with the circumstances in which a claim for qualified privilege may be made. My conclusion is that, the rules of natural justice applying to the proceedings, a copy of the inspector's report ought to be made available to the plaintiff. That should be done before the inquiry proceeds further. 36 There remain, however, no universal rules as to whether the confidential information itself need be disclosed in its entirety or whether some lesser disclosure may suffice: Ansell v Wells (1982) 63 FLR 127. In the context of considering the manner in which a Promotions Appeals Committee was to proceed, Davies J observed: … ordinarily, a contender for a position will not have a fair opportunity to put a case unless he or she is given due notice of the adverse factors which will be considered against him or her. Such notice should be given in time sufficient to enable the party properly to prepare his or her case. That is not to say that rules as to confidentiality should not apply. Referees may prefer that their opinions be confidential. Other persons in the department who have honestly given an opinion as to competence may prefer that the opinion not be disclosed, for disclosure may disrupt the continuing harmony of the department. Questions of confidentiality must, however, be dealt with in the circumstances of the particular case. The rules of natural justice do not lay down precise criteria. They simply provide that the administrator must act fairly in the particular circumstances of the case. While the parties should know the course which the committee adopts and the material which it takes into account, the committee, as an administrative body, has a discretion as to what it does and what it does not disclose to them: [(1982) 63 FLR at 140-141.] 37 Fourth, an adequate "opportunity" to be heard may be satisfied in some cases if the gist of any adverse information is disclosed without the entire text or document in which that information is contained necessarily also being disclosed. Thus, in Plaintiff M61/2010E v Commonwealth [2010] HCA 41, 272 ALR 14 French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, albeit in the context of considering s 424A of the Migration Act and decisions of the Refugee Review Tribunal, observed: [91] … [P]rocedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff's claims. The Migration Act makes special provision about how the Refugee Review Tribunal is to conduct its reviews. It provides that the Tribunal must give an applicant "clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". But that obligation is subject to qualifications. … More broadly expressed, procedural fairness may not require a decision-maker to disclose "the precise details of all matters upon which he intends to rely": McVeigh v Willarra Pty Ltd (1984) 6 FCR 587 at 600 per Toohey, Wilcox and Spender JJ. "It is sufficient that the gravamen or substance of the issue or factor is brought to the applicant's attention, or that the applicant is on notice of its 'essential features'": Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 1113 at [70], 103 FCR 539 at 557 per Merkel J. 38 Procedural fairness is thus not denied in a dumping inquiry arising under the Customs Act 1901 (Cth) where the "gist" of commercially confidential information has been disclosed "sufficient to enable any person wishing to make a submission … to do so": Marine Power Australia Pty Ltd v Comptroller-General of Customs (1989) 89 ALR 561 at 574 per Lockhart J. Nor is procedural fairness denied where a visa applicant has been put on notice that the Minister "was giving consideration to the question whether he should form a belief as to the character of the applicant, by virtue of the information received by the respondent, to the effect that the applicant was involved in criminal activity and associated with organised crime": Chu v Minister for Immigration, Local Government, and Ethnic Affairs (1993) 45 FCR 540 at 546 per Beaumont J. 39 The fact that the information in question may contain personal - and in some cases intensely personal - information is but part of the circumstances to be taken into account. 40 Even though as a general proposition information which may otherwise be required to be disclosed may be withheld by reason of the characterisation of that information as confidential, further questions may necessarily arise by reason of the identity of the person to whom the "confidentiality" is owed. Where the "confidentiality" arises by reason of a personal relationship between two persons - and where no question of any "confidentiality" to any third party arises - the very fact of the relationship may dictate the disclosure of information which is otherwise properly characterised as truly "personal" or "confidential". The need to preserve the "anonymity" (for example) of a third party such as a referee may in some circumstances confine the degree of disclosure otherwise warranted: e.g., Hamblin v Duffy (No 2) (1981) 55 FLR 228 at 240 per Lockhart J. Absent the need to protect the interests of third parties, however, the more intensely personal a relationship is, the more necessary it may be to disclose to the other party to that relationship the entirety of the information in question if that party is to be treated in a procedurally fair manner. The source of any obligation to protect "confidentiality" may well thus dictate the necessity to disclose either the entirety of that information - or at least the substance of that information in some degree of detail - to the other. The protection of the mere private interest of one party to such a relationship, in the absence of any greater public interest, may have to yield if the other party is be afforded an effective opportunity to address the allegations being made. And the more personal the information that is communicated to a decision-maker by one party - as opposed to information which may be loosely characterised as personal but commercial information - the more necessary it may be to disclose the entirety of the communication. Stripped of the context or the manner or the terms in which purely personal information is communicated, an opposing party may be denied a proper opportunity to respond. Personal information communicated in the form of a letter to a decision-maker may well take its colour from the terms in which the author of the letter communicates the information; the surrounding context of the letter itself; and the circumstances in which the letter was written. Absent the agreement of one party to a decision-making process to consider information "the contents of which were unknown to him" (e.g., R v Teachers Tribunal; Ex parte Colvin [1974] VR 905 at 909-910 per Lush J), procedural fairness may dictate the need for confidential information provided by an opposing party to a personal relationship to be disclosed. 41 The disclosure of information which is confidential, but more commercial in nature than personal, may in some circumstances be more easily accommodated by the demands of procedural fairness. The preservation of "confidentiality" and an adequate opportunity to be heard may be secured by the provision of such confidential information to an independent expert and by the imposition of so-called "Chinese walls". But information which is intensely "personal" may have to be disclosed to the persons concerned if one party is to be able to properly and adequately respond to the complaints or allegations of another. 42 Subject to any statutory modification of the common law rules of procedural fairness, either the entirety or the substance of such personal information may have to be disclosed if procedural fairness is to be afforded. 43 Fifth, if information is "credible, relevant and significant", it may not be a sufficient compliance with the requirement of procedural fairness for a decision-maker to assert that he has placed such information to one side or given it no weight: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72, 225 CLR 88. After referring to the decision of Brennan J in Kioa v West, Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ went on to observe: [17] It follows that what is "credible, relevant and significant" information must be determined by a decision-maker before the final decision is reached. That determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information. And that is why Brennan J prefaced his statement about a person being given an opportunity to deal with adverse information that is credible, relevant and significant, by pointing out that there may be information, apparently adverse to the interests of a person, which can and should be put aside from consideration by the decision-maker as not credible, not relevant, or of little or no significance to the decision to be made. "Credible, relevant and significant" must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is "credible, relevant and significant" are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached. [18] It follows that the Tribunal's statement, that it gave no weight in reaching its decision to the letter or its contents, does not demonstrate that there was no obligation to reveal the information to the appellant and to give him an opportunity to respond to it before the Tribunal concluded its review. Deciding that it could reach its conclusion on other bases did not discharge the Tribunal's obligation to give the appellant procedural fairness. 44 Finally, a breach of the requirements of procedural fairness may deny effectiveness to a step in a decision-making process (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, 209 CLR 597) and provide the basis for a submission that the first decision of the Tribunal was affected by jurisdictional error. The diversion of the views expressed in Bhardwaj was the subject of later analysis by Gray and Downes JJ in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288, 145 FCR 1. For present purposes it is sufficient to note that Bhardwaj does not stand for the proposition that jurisdictional error on the part of an administrative decision-maker always means that the decision is no decision at all or a decision without legal consequences: Ma v Minister for Immigration and Citizenship [2007] FCAFC 69 at [27]; SZKUO v Minister for Immigration and Citizenship [2009] FCAFC 167 at [26], 180 FCR 438 at 445. The consequences of a decision affected by error, including jurisdictional error, are determined primarily by consideration of the statute pursuant to which a decision is made. See also: Jackson v Purton [2011] TASSC 28 at [49] to [87] per Wood J.

KATZMANN J 71 Jimmy Maman is an Israeli citizen, born in Morocco. He arrived in Australia on a tourist visa in December 2003. He later met Ruth Seagull, an Australian citizen born in Israel, whom he married on 15 May 2005. The same day, sponsored by Ms Seagull, he applied for a Partner (Temporary) (Class UK) Subclass 820 (Spouse) visa and a Partner (Residence) (Class BS) Subclass 801 (Spouse) visa. He was granted a temporary visa but the marriage broke down before his application for a residence visa was determined. Without his knowledge, on 3 March 2006 Ms Seagull wrote to the Department of Immigration, Multicultural and Indigenous Affairs (later renamed Immigration and Citizenship), notifying it that the relationship was over. In the letter Ms Seagull cast doubts on the genuineness of the relationship and reported that her husband had made violent threats against her. She concluded the letter with the statement: I am hoping [scil.] that this letter will not risk in any way the safety of me or my son as I am fearful from Jimmy and his future action in regard to this matter. 72 Without disclosing either the fact or the contents of the letter, the Department wrote to Mr Maman's migration agent on 6 June 2006, advising that it had received information that the relationship was no longer continuing but that Mr Maman might still be eligible for a grant of permanent residence in two circumstances. Relevantly, those circumstances included a situation in which the applicant had suffered domestic violence committed by the sponsor. On 16 April 2007 Mr Maman's migration agent informed the Department that Mr Maman was the victim of domestic violence committed by his wife. The Minister for Immigration and Citizenship was not satisfied this was so and therefore referred the question to an independent expert under the Migration Regulations 1994 (Cth) ("the Regulations") which state that the expert's opinion is binding on the Minister. On 26 September 2008 the expert reported that Mr Maman was not the victim of domestic violence committed by his wife ("relevant domestic violence"). On 16 October 2008 Mr Maman was given an opportunity to respond to the opinion of the independent expert and on 6 July 2009 the Department received a report from a consultant psychologist. Some months later, a delegate of the Minister refused the application for a residence visa. 73 Mr Maman applied to the Migration Review Tribunal for review of the delegate's decision. The tribunal referred the question of domestic violence to a second independent expert, who also concluded that Mr Maman had not suffered relevant domestic violence. In October 2010 the tribunal sent the second independent expert's report to Mr Maman for comment. The report referred to the "key points" of Ms Seagull's letter in a passage marked "confidential". It was in this way that Mr Maman first learned that his ex-wife had written to the Department. Mr Maman complained about the process and, in particular, the failure to afford him the opportunity of seeing the letter and responding to its contents. He later provided a statutory declaration commenting on the matters raised in the report. The tribunal affirmed the delegate's decision, considering itself bound by the opinion of the second independent expert, holding (despite Mr Maman's complaints) that it was authorised by the Regulations and must therefore be taken to be correct. It refused Mr Maman's request to disregard the second opinion and for the matter to be referred to a third independent expert. The tribunal's reasons are best encapsulated in a passage at [31] of its decision record: The Tribunal is mindful of the fact that the delegate had previously referred the applicant's claim to an independent expert who also formed the opinion that the applicant was not a victim of domestic violence. The second independent expert formed the same view following the referral by the Tribunal. The applicant's aim appears to be that further opinions should be sought until such time as a favourable opinion is obtained. 74 Mr Maman then applied to the Federal Magistrates Court for constitutional writs to quash the tribunal's decision, to direct it to redetermine his application and to restrain the Minister from acting on or giving effect to the decision. He submitted that, for various reasons, the tribunal's decision was made without jurisdiction and/or contained errors of law or was not authorised by law. In particular, he alleged (in effect) that the failure to disclose Ms Seagull's letter or, at least, its contents was a denial of procedural fairness that vitiated both the independent expert's opinion and the tribunal's decision. The federal magistrate upheld the latter claim (though rejecting Mr Maman's other arguments), ordering that writs of certiorari and mandamus issue to quash the Minister's decision and direct the tribunal to reconsider and determine the matter according to law. 75 The Minister now appeals from the federal magistrate's judgment and asks that those orders be set aside. The grounds of appeal are set out in full in the reasons of Flick and Foster JJ. 76 Although the question was disputed in the Court below, the Minister now accepts that an independent expert is obliged to afford a visa applicant procedural fairness. He also accepts that an opinion expressed by the independent expert formed in its absence would not bind the tribunal and, as the tribunal considered itself bound by it, the tribunal's decision would be vitiated if the failure to inform Mr Maman of the substance of the letter amounts to a denial of procedural fairness. The appeal is concerned, therefore, with the content of the duty in the particular circumstances of this case. 77 The central question is whether the independent expert was required to divulge the letter or at least the substance of it. 78 To answer this question it is first necessary to understand the legislative scheme. 79 Section 29 of the Migration Act 1958 (Cth) ("the Act") gives the Minister power (subject to the Act) to grant non-citizens visas to travel to and enter Australia and/or to remain here. Permanent visas are visas entitling a non-citizen to remain here indefinitely (s 30). There are prescribed classes of visas (s 31(1)). A visa is of a particular class if the Act or the regulations so specify (s 31(5)). Section 31(3) provides that the regulations may prescribe criteria for visas of a specified class. The criteria for Subclass 801 visas are contained in Schedule 2 of the Regulations. Sch 2 cl 801.22 sets out certain criteria that must be satisfied at the time of decision. They include that the applicant meets the requirements of subcl 801.221(6). Subcl (6) relevantly provides that an applicant meets the requirements of the subclause if the applicant: (a) is the holder of a Subclass 820 visa; and (b) would meet the requirements of subclause (2) or (2A) except that the relationship between the applicant and the sponsoring spouse has ceased; and (c) has suffered domestic violence committed by the sponsoring spouse. 80 I note parenthetically that the expression "family violence" was substituted for "domestic violence" throughout the Regulations in amendments introduced by the Migration Amendment Regulations 2007 (No. 13) (Cth), but those amendments only apply in relation to applications for visas made on or after 15 October 2007 (see reg 3(2)). Similarly, "partner" has replaced "spouse" in amendments introduced by Migration Amendment Regulations 2009 (No. 7) (Cth), but those amendments only apply in relation to an application for a visa made on or after 1 July 2009 (see reg 3(2)). 81 Mr Maman met the requirements in paragraphs (a) and (b). The issue before the delegate and the tribunal was whether he met the requirement in (c). 82 Regulation 1.23 provides for the circumstances in which a person is taken to have suffered or committed domestic violence. Although this clause was amended in November 2009, the amendments do not apply if, as here, the applicant claimed to the Department before 9 November 2009 that "family violence" (as defined in the Regulation) had been committed (see Migration Amendment Regulations 2009 (No. 12) (Cth) reg 6(2)(a)(iii)(A)). I note that the federal magistrate referred to regulation 1.23 as amended. But I agree with Flick and Foster JJ that nothing turns on this. The differences are not of substance. 83 Regulation 1.23 as it applies to Mr Maman is extracted in full in the judgment of Flick and Foster JJ. Relevantly, if an application for a visa includes a non-judicially determined claim of domestic violence the Minister is required to consider whether the alleged victim has suffered "relevant domestic violence". If satisfied, the Minister must consider the application on that basis. If not so satisfied, the Minister must seek the opinion of an "independent expert" on the question. In that event, the Minister must take the independent expert's opinion to be correct for the purposes of deciding whether the alleged victim satisfies a prescribed criterion for a visa that requires the visa applicant to have suffered domestic violence. 84 "Relevant domestic violence" was relevantly defined in reg 1.23(2)(b) to mean "conduct, whether actual or threatened, towards the alleged victim … that causes the alleged victim … to reasonably fear for, or to be reasonably apprehensive about, his or her own wellbeing or safety". 85 An "independent expert" was defined in reg 1.21(1) as a person who is suitably qualified to make independent assessments of non-judicially determined claims of domestic violence. There is no issue in this case that the two people retained for the purpose (both Centrelink social workers) were suitably qualified. 86 Here, the Minister was not satisfied that Mr Maman had suffered "relevant domestic violence". Therefore, he was required by subreg 1.23(1C) to take as correct an opinion of an independent expert that the alleged victim has suffered relevant domestic violence. 87 By s 349(1) of the Act, the tribunal could exercise all the powers and discretions conferred by the Act on the Minister. It follows from the reasoning in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 ("VEAL") at [9] concerning the effect of s 414(1) (which is the equivalent provision affecting the Refugee Review Tribunal) that the tribunal was bound, too, by the terms of subregs 1.23(1B) and (1C). It also follows from the reasoning in VEAL that the duty of the tribunal to review the decision of the Minister to refuse an applicant a Subclass 801 visa is to be read as conditional upon the tribunal (and in this case the independent expert) according him procedural fairness. 88 As I observed at the outset, it is now not disputed that an independent expert engaged under reg 1.23 is under a duty to provide procedural fairness to a visa applicant who claims to be a victim of domestic violence. That is not because the independent expert was making a decision under the Act, as the federal magistrate reasoned. It is because of the nature of the functions the expert performs and the effect of the expert's decision on the interests of the visa applicant. See for example Kioa v West (1985) 159 CLR 550 at 619 per Brennan J. Nor is it disputed that an opinion expressed by an independent expert formed without affording the visa applicant procedural fairness would not be effective to bind the tribunal under reg 1.23(1C). And it is common ground that the effect of the regulatory scheme is that the Minister (and it must follow also the tribunal) could not decide that relevant domestic violence did not take place unless provided with a validly-formed opinion from an independent expert to that effect. 89 The Minister submits, however, that in the particular circumstances of the present case procedural fairness did not require that the letter or its contents be brought to Mr Maman's attention. 90 In the ordinary case, where no problem of confidentiality arises, as Brennan J said in Kioa v West at 629: an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account. 91 In VEAL the High Court applied Kioa v West to a case in which the Department had received an unsolicited letter about an applicant for a protection visa. The letter made allegations which, if true, undermined the applicant's claim to fear persecution in his country of citizenship. The tribunal referred to the letter in its reasons but noted that the information was provided in confidence, that it was unable to test the claims made in it and therefore gave it no weight. It also directed that the content of the letter not be published or disclosed pursuant to s 440(1) of the Act, as disclosure was not in the public interest. The High Court unanimously held that the substance, though not the letter itself nor the author's identity, should have been disclosed to the applicant before the tribunal made its decision and its failure to do so amounted to a denial of procedural fairness at common law. It explained (at [17]) that a decision about whether information is "credible, relevant and significant" must be determined by a decision-maker before the final decision is reached and that determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information. "Credible, relevant and significant", it went on, must be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. Information cannot be so dismissed unless the information is "evidently not credible, not relevant, or of little or no significance to the decision that is to be made". The Court said (at [24]) that the content of the rules of procedural fairness may be informed by considerations of public interest immunity and (at [29]) that in that case, the public interest in ensuring that there is no impediment to the giving of information to authorities about visa claims could be accommodated with the requirements of procedural fairness. The proper accommodation was to inform the visa applicant of the substance of the allegations in the letter and invite his response. 92 Here, the Minister submits that the information need not have been disclosed as it had little, if any relevance, and contained no new information of any significance. I acknowledge that the principles of procedural fairness are flexible in that they must always be moulded to the particular circumstances of the case: VEAL at [25]. But, like Flick and Foster JJ, I reject the submission. 93 It is true, as the Minister submitted, that the letter said nothing about whether Mr Maman had suffered the violence he claimed. It dealt with the circumstances in which the relationship broke down. Yet, the circumstances in which the relationship broke down could rationally affect the assessment of the probability of three factual assertions Mr Maman had made: that domestic violence had taken place, that Ms Seagull had committed it, and that he was the victim of it. These were the three facts critical to the opinion the independent expert had been asked to provide. The letter intimated that there was violence in the relationship but that Mr Maman was the aggressor and she the victim. The circumstances attending the breakdown of the relationship were therefore relevant to the independent expert's inquiry. And the letter was plainly prejudicial. It was capable of influencing, and, no doubt, calculated to influence, the mind of the decision-maker. At the very least it could have affected the expert's views about the reliability of Mr Maman's version of events. 94 Moreover, a reading of both expert opinions strongly points to the conclusion that each of them took the contents of Ms Seagull's letter into account. The first expert said his opinion was formed "after careful consideration of all the information provided" and concluded that Mr Maman was "a part of an extremely traumatic and volatile relationship rather than a victim of domestic violence". The second expert said that she had relied on all the information referred from the tribunal to Centrelink, which included the letter and the first expert's report. She also mentioned the existence of a volatile relationship. There is a real prospect that both opinions were influenced by the information conveyed by Ms Seagull's letter. As the letter was adverse to his interests, Mr Maman had a right to be heard on it before the independent expert provided his or her opinion. The failure to give him that opportunity means that the opinion was not an opinion within the meaning of subreg 1.23(1C) and the tribunal therefore wrongly concluded that it was required to take it to be correct for the purpose of deciding whether Mr Maman had suffered domestic violence. In the result, its decision was made in excess of jurisdiction. I respectfully adopt the conclusions Flick and Foster JJ express at [46]. 95 It follows that I agree with Flick and Foster JJ that Mr Maman was denied procedural fairness and that the tribunal decision must be set aside for that reason. I therefore agree with Flick and Foster JJ that the appeal must be dismissed. I am content with the proposed orders, although, as I have indicated, I take the view that the tribunal has the power in the circumstances of this case to seek the opinion of another independent expert. 96 In general terms I also agree with their Honours' reasons, but with two qualifications. 97 First, I would not be quite as emphatic about the duty to disclose "purely personal" information. I would wish to leave open the question whether the duty arises where disclosure would pose an imminent threat to the safety of the source. That issue, however, does not arise in this case. 98 Secondly, on the question of whether the tribunal, if not itself satisfied that an alleged victim has suffered relevant domestic violence, is required or empowered to obtain another independent expert's opinion, I share their Honours' qualms about the Minister's submission - but with one proviso. If the first opinion is reached in denial of procedural fairness or, for some other reason does not meet the statutory description, then the tribunal, standing in the shoes of the Minister, would be bound by the direction in subreg 1.23(1B)(b) to seek the opinion of another independent expert. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

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Cases Cited (27)