Scorgie v Minister for Immigration and Citizenship

Denial of procedural fairness 4 The Applicant contends that the Tribunal used a number of "publications" in a manner which has denied him procedural fairness. 5 There are a number of answers to this ground of appeal. First, the ground of appeal particularises a number of extracts from identified texts. But the Tribunal's reasons do not disclose any reliance upon any of those texts. The texts particularised, it is understood, are not to be found in the Tribunal's reasons for decision in the present proceedings. 6 Two of the texts are referred to in the earlier decision of the Tribunal, referred to in paragraph 98 of its reasons, namely, Re Howard v Minister for Immigration and Multicultural Affairs [2006] AATA 474 at [104]-[105]. In those paragraphs of the Tribunal decision in Re Howard, there is reference to two further decisions of the Tribunal, namely, Re Sorensen v Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 96 at [29], and Re Azar v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 1061 at [37]. The further texts particularised in the present Amended Application are to be found in the reasons for decision in Re Sorensen and Re Azar. The Deputy President who constituted the Tribunal in the decision presently under review was also the Member who constituted the Tribunal in each of the other decisions referred to. 7 No denial of procedural fairness is made out simply because a decision-maker refers to evidence given in other proceedings in which he has been involved. A denial of procedural fairness may be made out if, for example, a decision-maker goes beyond simply referring to evidence in other proceedings and seeks to rely upon such evidence or conclusions previously reached without affording an affected party an opportunity to make submissions. But that is not the present case. A fair and balanced reading of the Tribunal decision reveals either that the Tribunal was distinguishing previous decisions or applying the Ministerial Direction to which it must have regard. That reasoning on the part of the Tribunal reinforces a conclusion that the Tribunal was focusing attention upon the facts of the present case. Whatever may have been the evidence in other proceedings in which the Tribunal member was involved, and whatever may have been the "experience" of the delegate which he had brought to bear when making his present decision, the Tribunal was confining its attention to those aspects of deterrence relevant to the decision presently under review. 8 The need for the appellant to address the general issue identified in the ministerial direction as "deterrence" was clearly recognised. The facts relevant to that issue had been canvassed and the parties given an opportunity to make submissions. The manner in which the Tribunal resolved the issue of deterrence in the present proceedings emerges most clearly from para 102 of its reasons, which state: Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results. While visa refusal is not intended as a punishment, paragraph 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does. That includes deterring the use of corrupt agents who are prepared to lodge fraudulent applications. Granting a visa in the present case would send entirely the wrong message to those contemplating acts violating Australian migration law. The issue of deterrence and the facts upon which the Tribunal proceeded to make its decision in the present case were known to the parties and were the subject of submissions. It is not considered that para 102 of the Tribunal's reasons relies in any way upon the observations previously made by the Tribunal at para 98. 9 Second, and in the absence of the Tribunal relying upon evidence provided in other proceedings, the present allegation of a denial of procedural fairness is in substance a request to be involved in the evolving reasoning processes of a decision-maker. It is a request to have an opportunity to comment upon how the Tribunal is approaching the issues the subject of decision. There was no requirement imposed upon the Tribunal to disclose to the Applicant the particular decisions of either the Tribunal or the Courts upon which it was proposing to rely in its reasoning process in order to afford the Applicant a further opportunity to make submissions as to why those decisions were to be distinguished. 10 Procedural fairness does not require the disclosure to a party of the manner in which material may be used or disclosure of an evolving process of deliberation or decision-making. Procedural fairness does not generally require a decision-maker to disclose what he is minded to decide so that a party may have a further opportunity of criticising his mental processes before he reaches a decision: see Hoffman-La Roche v Secretary of State for Trade and Industry[1974] 2 All ER 1128. Lord Diplock there observed at 1157: … the rules of natural justice do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished. There is no general requirement to give a party a running commentary on his prospects of success warning him of every reason why his claims might not be thought sufficient to justify the relief sought: see Applicant S214 of 2003 v Refugee Review Tribunal [2006] FCA 375 at [32] per Edmonds J, 90 ALD 362, citing Abebe v Commonwealth of Australia [1999] HCA 14 at [187], 197 CLR 510. See also Commissioner for Australian Capital Territory Revenue v Alphaone (1994) 49 FCR 576 at 591-2. In the circumstances of the present proceedings, there has accordingly been no denial of procedural fairness in not disclosing the various texts not referred to in the reasons of the Tribunal now under appeal but in the reasons of earlier Tribunal decisions. 11 Reliance by the Applicant upon VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72, 222 ALR 411 is misplaced. Procedural fairness had there been denied by the non-disclosure of a letter which had made serious allegations against the Applicant's husband. A statement by the Tribunal, that it had given the letter no weight, did not absolve it of the necessity to disclose the substance of the letter to enable submissions to be made. 12 In the present proceedings, the "evidence" referred to in the earlier decision of the Tribunal was not evidence personal to the present Applicant. It was more in the nature of accumulated knowledge or expertise and, to the extent that reference was made to that earlier knowledge or experience, it was referred to in a context where the Tribunal member was giving background to the incorporation of "deterrence" as part of Direction No 21. That direction was very much to the fore of the parties' consideration and was a matter in respect to which submissions were advanced. VEAL should not be construed as imposing any general requirement upon an administrator to disclose or comment upon all prior facts and knowledge of which he may be aware by reason of his having been involved in earlier cases. 13 Obvious care needs to be taken, however, by Tribunal members when referring to evidence given in other proceedings to which they have been involved. An issue that occasioned considerable debate at the time when a general administrative tribunal was being considered was the desirability that such a Tribunal have available to it persons with expertise: see Commonwealth, Administrative Review Committee at para 292, Parliamentary Paper No 144 of 1971 and Committee on Administrative Discretions at paras 148 to 152, Parliamentary Paper No 316 of 1973. When enacted, the Administrative Appeals Tribunal Act 1975 (Cth) recognised a qualification for appointment was "special knowledge or skill": see s 7(2)(d). 14 After appointment it is inevitable that a Tribunal member will continue to accumulate expertise in particular areas and become familiar with vast amounts of materials relevant to decisions to be made. The accumulation of such expertise and knowledge should obviously not be discouraged as to do so could prejudice the ability of the Tribunal to make informed decisions. The issues arising from having available to the Tribunal such expertise and knowledge has to some extent been discussed by Katzen in 'Procedural Fairness and Specialist Members of the Administrative Appeals Tribunal' (1995) 2 Australian Journal of Administrative Law 169. The necessary qualification which must be expressed is that care should be taken to ensure that the proceedings before the Tribunal remain fair and permit all parties a reasonable opportunity to present their cases. So much is guaranteed by s 39 of the Administrative Appeals Tribunal Act 1975 (Cth) itself. 15 Difficult questions have arisen in circumstances where it is the accumulated expertise and skill of a Member which is being brought to bear upon a particular decision-making process. The present case is simpler. It is a clear submission by the Applicant that identifiable material has been relied upon but not disclosed. That case is largely answered by the conclusion that the identifiable material or publications have not been relied upon and that the decision of the Tribunal under appeal has been based upon facts disclosed to and debated by the parties. In the present case the opportunity to make submissions was extended to both parties and submissions made accordingly. 16 This ground of review is thus to be dismissed.

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (8)

Cited By (4)