(ii) Natural justice (and s 57)
176 The question of natural justice having been raised, its content is to be ascertained, as Hill J points out at [40], by reference to, among other things, the statutory provisions. Plainly one of them is s 57. That provision received no attention in the submissions of either counsel. Such however, is not a reason for us to decide the case as if s 57 did not exist. It appears to me to have considerable relevance. Among other things, at least some of the information that the delegate included in his letter of 16 April 2002 was information of kinds contemplated by s 57(1) and not falling within s 57(3). Since the statutory provisions are so intimately bound up with the question of natural justice and, like s 424A, s 57 is a statutory partial expression of that very concept (see SAAP at [50] per McHugh J); it seems to me that we should proceed to decide the relevant questions.
177 Section 494A only applies if 'a provision' of the Act or Regulations requires or permits the Minister to give a document to a person.
178 Section 494B applies only for certain purposes, namely 'the purposes of provisions' of the Act or Regulations that both -
'(a) require or permit the Minister to give a document to a person (the recipient); and
(b) state that the Minister must do so by one of the methods specified in this section;
… .'
179 Both of those sections, by the references to 'provisions', clearly enough contemplate express requirement or permission, as the case may be, by particular provisions of the legislation.
180 The heading to s 494C (though not part of the Act: s 13(3) Acts Interpretation Act 1901 (Cth)) may be legitimately referred to -
'(a) to confirm that the meaning of the [section] is the ordinary meaning conveyed by the text …, taking into account its context in the Act and the purpose or object underlying the Act; or
…
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure;' (s 15AB(1)(a) and (b)) ibid.
181 Under s 494C(1), s 494C only applies -
'if the Minister gives a document to a person by one of the methods specified in s 494B (including in a case covered by s 494A).'
182 But, as ss 494A and 494B together only apply when (or for the purposes of) 'provisions' of the legislation require or permit the Minister to give a document to a person, in my opinion, the ordinary meaning of s 494C is that it is only concerned with -
· when the person is taken to have received a document
· which is otherwise required or permitted to be given to a person by a provision other than s 494C itself.
183 If that view is wrong, there is at least ambiguity about the matter and it is permissible to have regard to the heading to s 494C which is in the following terms: 'When a person is taken to have received a document from the Minister'. The heading clarifies the matter, so that the section has the meaning just proposed.
184 It may, because of s 57(2)(a) and ss 494A to 494C inclusive, be accepted that the delegate may not have been obliged to telephone or otherwise take alternative steps to the letter of 16 April to tell the appellant of the information that troubled him as to her possible lack of credit, insofar as s 57(2) obliged the Minister to give her certain information, to ensure her understanding and to invite her to comment on it. Section 57(2)(a), in substance, permits the Minister to choose an appropriate way of giving that information. Section 494A could therefore operate, and in turn so could ss 494B and 494C. Section 62(1) then authorised the delegate to make the decision to grant or refuse the visa application without taking any further action to obtain the invited information.
185 However, s 62 applies not only where the Minister or delegate is required by s 57 to give information. A delegate might, for example, regard it as fair and right, despite s 57(1)(b) or (c) or s 57(3), to invite comment or further information (pursuant to s 56) from an applicant, being information referred to in one of those paragraphs. If an applicant is so invited, the Minister may, once the time limited for giving the information has passed, proceed to make the final decision without more ado.
186 Nevertheless, for s 62(2) to operate, the applicant must have been 'invited' to comment. In relation to an invitation concerning information falling within s 57(1)(b) or (c), the method of invitation is, so far as it seeks additional information, permitted to be by documentary means: see [89] above. Sections 494A and 494B then would have the effect of permitting or requiring postage to the applicant's last known address to be deemed to be an effective invitation, although in reality it may not have been.
187 However, the Act draws a distinction between 'comment' and 'information': compare ss 57(2)(a), 57(2)(c) and 58(1).
188 It follows that what is an effective invitation to comment on the kinds of information referred to in s 57(1)(b) and (c) for the purposes of s 62(2), is not answered by any specific provision of the Act. There is no equivalent in relation to s 57(2)(c), of s 424A(2). On general principles, a statutory requirement of an 'invitation' to comment on information of relevance to one's interests would be regarded as necessitating a real and effective invitation: see, for example, Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [30] and [31]; 183 ALR 188.
189 On the material before his Honour, there had not been, as was known to the delegate by 9 May 2002 (by the return of the letter of 16 April) before he proceeded to make his decision, an effective invitation to the applicant to comment. The delegate also knew of an alternative means of communicating with the appellant, namely by her telephone number.
190 Although the Tribunal had no jurisdiction to deal with the appellant's application to it, a legally effective conclusion as to such lack of jurisdiction could only be made by the Tribunal or a court. The respondent's departmental officers correctly recognized this by fulfilling the duty of the departmental Secretary pursuant to s 418. Under that section, the Tribunal is to notify the Secretary of the making of an application to it. The Secretary is then to give the Tribunal the statement of reasons for the decision sought to be reviewed: s 418(2). The section continues:
'(3) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision.'
191 The significance of this lies in the fact that, in the material given by the Secretary to the Tribunal, there is no file note or other indication that, after 9 May 2002, the delegate made any further effort of any kind to invite comment from the appellant. Given the usual practices that attend public administration in such matters, the strong inference is that the delegate made no such attempt.
192 Despite notice of this matter, the respondent's legal representatives deliberately refrained from making enquiry as to whether the delegate or any other departmental officer had made any such attempt, especially by telephone. Counsel relied, in that regard, on the statements in Coulton and Branir that where 'by any possibility' other evidence might be called by the respondent, an appellant will not be permitted to raise new questions of law. Evidently counsel overlooked what was also, and nevertheless, said in Branir at [38], set out again for convenience as follows:
'The possibility of evidence or the possibility that the hearing would have taken a different course, if not fanciful, may well suffice to deny raising of the new point. These considerations should not be seen as not requiring counsel frankly and candidly to say that the trial would not have been conducted differently if he or she is of that view.'
193 Obviously, in many cases counsel could not say such a thing without making due inquiry. Where inquiries are within a narrow range and are easily made and answered, as would appear to be the case here, they should of course be made. To say that is not to detract from the extreme undesirability of forcing any difficult, hindsight decision on counsel: Allsop J in Branir was, with respect, eloquent and compelling on that point. The Court should be concerned with real prejudice or the lack of it where the actual position can readily be ascertained.
194 Nevertheless, when, as I think, a dispensation ought to be given to the appellant, it would be wrong, even at this late stage, to disadvantage the respondent for a mistake. The matter can be dealt with by giving liberty to the respondent to apply to call further evidence and seek reconsideration of this issue. If and when that happens, the appellant can re-apply to call her further intended evidence. For the moment, as the latter evidence would not affect the result I propose, I would reject it.
195 Further, some (if not all) of the material on which the delegate sought to invite the appellant to comment was of the kinds referred to in s 57(1). As to that, the delegate had power, between 9 and 28 May, to extend the period for a response by the appellant. Nothing bound the delegate, when big things might be at stake, not to take further steps to inquire further and differently of the appellant.
196 In all the circumstances there was, in my opinion and subject to any further evidence being adduced, a denial of procedural fairness on this account.
197 So much does not touch the delegate's not having invited the appellant to comment or produce material in relation to his intended reliance on information as to the return of the letter of 16 April. The information concerned may be taken to be (a) the information that the letter had been returned unclaimed, and (b) the inferred information that (i) the appellant had 'failed to make adequate arrangements in maintaining contact with the Department' and (ii) in consequence, the appellant's genuineness and the rational basis ('well foundedness' was the delegate's term) for her claimed fear was thereby rendered at least doubtful. Such information would fall within s 57(1). The delegate's not having issued such an invitation might possibly be either a denial of natural justice or a breach of s 57 or both. In each case, the analysis depends on questions bound up with a concept necessary to the operation of s 57, namely whether the information concerned 'would be the reason or a part of the reason' for refusing the visa application.
198 Sackville J recently summarised the authorities on the phrase 'would be the reason or part of the reason', as it appears in s 424A, in SZDQL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 769. There is no reason to view the phrase in s 57 differently. His Honour said (at [55]):
'The following propositions relevant to this issue appear to be established by the authorities:
1. In assessing whether information is the reason, or a part of the reason, for the [Tribunal's] decision, the question is to be judged retrospectively, in the light of the [Tribunal's] reasons. This is so notwithstanding that s 424A(1) addresses the matter prospectively: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 ('Paul'), at [94] per Allsop J (with whom Heerey J agreed); VAF [v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 206 ALR 471], at [29].
2. Section 424A(1) requires identification of the reason for affirming the decision under review. In one sense, the reason is usually the [Tribunal's] lack of satisfaction that the applicant has a well-founded fear of persecution for a Convention reason. However, some "unbundling" of the immediate reason for the decision is required for the purposes of s 424A(1): Paul, at [99]; VAF, at [31].
3. The fact that the [Tribunal] acknowledges in its reasons that the information has some relevance to its determination does not necessarily mean that the information forms "a part of the reason" for the decision: VAF, at [30]. Nor is it ordinarily enough that the information has some "general adverse relevance": Paul, at [94].
4. The approach that should be taken is that set out in VAF, at [33]:
"It commonly is the case that the detail and complexity of the case advanced by a visa applicant, and the information that is given and garnered for the purposes of considering it, results in the tribunal being confronted with issues that may be of varying importance, relevance and centrality both to the decision to be taken and to the reasoning that in the event sustains that decision. While the reasoning process may advert to, and express views on, such issues, all will not necessarily constitute part of the reason for the tribunal's decision. Tribunals, no less than courts, engage in their own species of dicta often enough for reasons related to haste and pressure in composition. When a tribunal's reasons are to be evaluated for s 424A(1) purposes, the court as a matter of judgment is required to isolate what were the integral parts of the reasons for the tribunal's decision. That task, necessarily, is an interpretative one. In some instances the differentiation of the integral and the inessential may be by no means easy - and made the more so by less than explicit indications in the reasons themselves as to what the tribunal itself considered to be integral".
The above passage was approved by the Full Court in VUAX … at [51]-[54].
5. If the information, considered in the context of the [Tribunal's] reasoning process and the aggregate of its findings, is "relatively minor and unimportant in the scheme of things" (VAF, at [4]), it is not likely to be a part of the reason for the decision. A useful test is whether the information was:
"so integral to the reasoning process rejecting the [applicant's] claim as to require as a matter of fairness that the [applicant] be told that information (cf s 424A(1)(a)) and why it was relevant to the review (cf s 424A(1)(b))': VAF, at [41]; VUAX, at [53]-[54]."'
199 It will be obvious that ascertainment of what is 'part of the reason' for refusing a visa will often not be an easy matter. (It would plainly be wise, as well as fair, for the Tribunal and delegates to err on the side of caution.) Further, as Sackville J's fifth point shows, a judgment of what is 'part of the reason' is itself partly normative: is it 'so integral to the [adverse] reasoning process … as to require as a matter of fairness that the [applicant] be told that information and why it was relevant'?
200 'The reason' (or relevant reason) for refusing the appellant a visa was rejection of her credibility. Several sub-reasons, as it were, were given by the delegate for that reason. The information in question was one of them. The delegate did not indicate their comparative importance. In my opinion, it is impossible to say that the material in question was not sufficiently important to the delegate's reasoning process as not to require, as a matter of fairness, that the appellant be made aware of it. It would not have been at all obvious to her that the delegate would take the bare return of the letter into account in the ways that he did. There was at least a prospect that, had the delegate sought further information and comment, such information could ease his mind about the appellant's diligence in keeping in touch with the Department (and also lead to her dealing with the earlier matters sought to be raised with her).
201 Following the High Court's decision in SAAP, it seems clear that the Court should take no narrow view of such rights, in aid of procedural fairness, as are accorded to an applicant by a provision such as s 57 or s 424A. The majority judges in SAAP were McHugh, Kirby and Hayne JJ. McHugh J (at [50]) said:
'The obligation on the Tribunal to give the invitation and to invite comment on the information is expressed in broad and general terms. … It applies to information received by the Tribunal from sources other than the applicant. It also does not apply to all information that the Tribunal receives. It only applies to information that the Tribunal considers "would form part of its reason for refusing the application for review". Nevertheless, the object of the section must be to provide procedural fairness to the applicant by alerting the applicant to material that the Tribunal considers to be adverse to the applicant's case and affording the applicant the opportunity to comment upon it.' (Footnotes omitted.)
202 In a footnote his Honour referred, with apparent approval, to the following paragraph from Merkel J's judgment in Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919; 110 FCR 27 (at [39]):
'Section 424A does not require the [Tribunal] to provide to an applicant all of the information upon which it proposes to act, other than information provided by an applicant for the purpose of the review. Rather, the section requires the [Tribunal] to provide the applicant with "particulars of any information" that the [Tribunal] considers would form part of its reason for refusing the application for review, to explain to the applicant why that information is relevant to the review and to invite a response to it. Thus, s 424A enacts a basic principle of the common law rules of natural justice that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise: see … Miah …179 ALR 238 at 269 per McHugh J. By enacting s 424A and its counterparts elsewhere in the Act, the legislature has accepted that fairness dictates that an opportunity must be provided to applicants for visas or for review to respond to, or deal with, the adverse information.'
203 Gummow J, though dissenting on the applicability of s 424A to the facts in SAAP, nevertheless considered (at [136]) that:
'…s 424A mandates the fairness in the treatment of applicants for review which is an inviolable requirement attaching to the exercise of the jurisdiction of the [Tribunal] attracted by s 414 and continuing through to the preparation of the written statement of decision under s 430.'
204 In my opinion, it is clear from the materials that were before the primary Judge that s 57 was not complied with and, on the analogy of SAAP, that was an error of a kind to attract orders for the issue of the relevant constitutional writs. There was also a corresponding denial of procedural fairness.