WZARH v Minister for Immigration and Border Protection

Solicitor for the Appellant: Thomas McLoughlin Solicitor

Solicitor for the First Respondent: Sparke Helmore Lawyers

Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice save as to costs.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2233 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

ADOLFO GENTILE IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

JUDGES: FLICK, NICHOLAS & GLEESON JJ DATE OF ORDER: 20 OCTOBER 2014 WHERE MADE: SYDNEY

1. The appeal is allowed.
2. Orders 1 and 2 of the Federal Circuit Court made on 14 October 2013 in PEG 218/2012 are set aside and in lieu thereof: (i) It is declared that the decision of the Independent Merits Reviewer made on 25 July 2012 in review case number NEC053 was arrived at in breach of the rules of procedural fairness. (ii) The First Respondent is to pay the Applicant's costs as taxed or agreed.
3. The First Respondent is to pay the costs of the Appellant. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2233 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

ADOLFO GENTILE IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER

JUDGES: FLICK, NICHOLAS & GLEESON JJ DATE: 20 OCTOBER 2014 PLACE: SYDNEY

Flick & Gleeson JJ: 1 The Appellant is a citizen of Sri Lanka. He arrived by boat on 7 November 2010. 2 In January 2011 he made a request for a refugee status assessment. That assessment was adverse. In May 2011 he sought an independent merits review. He was interviewed by an Independent Merits Reviewer on 16 January 2012. A recording and transcript of that interview was prepared. After the hearing, the Appellant wrote to the Independent Merits Reviewer enclosing documents to support his application. Regrettably, the Independent Merits Reviewer who conducted the January 2012 interview became unavailable. A different Independent Merits Reviewer then became involved. Thereafter, on 4 May 2012 the Appellant made a further written submission addressed to the Department. The review process was completed and the second Independent Merits Reviewer on 25 July 2012 found that the Appellant was not a person who met the criteria for a protection (Class XA) visa. Accordingly, a recommendation was made that the Appellant not be recognised as a person to whom Australia has protection obligations or as a member of the same family unit of such a person. 3 Judicial review was sought. In very summary form, the Appellant maintained that: he had been denied procedural fairness, principally because he had not been given an opportunity to be heard in person by the Independent Merits Reviewer who made the July 2012 recommendation; and there had been a failure to take into account a relevant consideration, namely the scarring on the Appellant's arm which he claimed had been the result of "mistreatment" at the hand of the "EPDP", namely the Eelam People's Democratic Party. His application for review was dismissed by the Federal Circuit Court of Australia in October 2013: WZARH v Minister for Immigration and Border Protection [2013] FCCA 1608. 4 He now appeals to this Court. His Grounds of Appeal repeat the arguments that have been rejected by the Federal Circuit Court Judge and provide as follows (without alteration): His Honour erred in failing to find that the Appellant had been denied procedural fairness in the circumstances of: (a) The Independent Merit Review ("IMR") hearing was not conducted by the IMR officer (Second Respondent) who made the recommendation that the Appellant not be recognised as a person to whom Australia has protection obligation; and (b) Visible scarring on the arm of the Appellant not being taken into account in findings that the Appellant would have an insufficient profile to come to the attention of the authorities in Sri Lanka, as per paragraphs 104 and 105 of the IMR recommendation. Although separately expressed, the written submissions filed on behalf of the Appellant stated that "the matters are interconnected". Those submissions proceeded to employ the findings made by the Independent Merits Reviewer in the July 2012 recommendation in respect to the "visible scarring" as a further example of claims being rejected by a Reviewer who had "never met" the Appellant. 5 The appeal is to be allowed.

The hearing before the Independent Merits Reviewer - an expectation of an oral hearing? 6 The first of the two ways in which the Appellant advances a claim that he has been denied procedural fairness focusses attention upon the fact that he attended an interview before an Independent Merits Reviewer in January 2012 but did not attend any interview or further hearing before the Independent Merits Reviewer who actually made the adverse recommendation in July 2012. 7 It is concluded that the Appellant has been thereby denied procedural fairness. 8 In reaching that conclusion, it is considered that: it is unnecessary to reach any firm view as to whether, as a general proposition, all persons in the position of the Appellant would be entitled to an oral hearing, although there are sound reasons why an oral hearing of some kind may be prudent in appropriate circumstances, including those circumstances where the credibility of a claimant may depend upon an assessment of his demeanour; but that, in the circumstances of the present case the Appellant has been denied procedural fairness because he had a legitimate expectation either that: the Independent Merits Reviewer who conducted the oral hearing in January 2012 would be the person who made the ultimate recommendation to the Minister; or, if for some reason that Independent Merits Reviewer did not complete the process initially entrusted to him: any different Independent Merits Reviewer who in fact made the ultimate recommendation to the Minister would first conduct an interview or an oral hearing.

The absence of any universal right to an oral hearing 9 Although it is unnecessary to reach any firm conclusion as to whether persons in the position of the Appellant are entitled as a matter of natural justice or procedural fairness to an oral hearing, it must necessarily be recognised at the outset that the rules of natural justice or procedural fairness do not universally require an oral hearing before an administrative decision is made: Re Minister for Immigration and Multicultural Affairs; Ex parte P T [2001] HCA 20, (2001) 75 ALJR 808 at 813. Kirby J there observed: [27] There is no universal rule that administrators making a decision affecting a person are bound to hold a hearing and conduct a face-to-face interview. Most administrative decisions are made without such a facility. To impose it unnecessarily would inflict a rule of inflexibility as well as one having significant economic costs… Applied: Malupo v Minister for Racing, Gaming and Licensing [2002] NTSC 51 at [33], (2002) 170 FLR 111 at 118 per Martin CJ. Similarly, in Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591 Black CJ, Lee and Heerey JJ observed at 597: It is beyond argument that the rules of natural justice do not mandate in all cases an oral hearing for the person affected. This was recognised by the House of Lords in Local Government Board v Arlidge [1915] AC 120 at 133. There have been many developments of the law in this area since Arlidge but it remains clear that an oral hearing is not necessary in every case… See also: Zhang v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 384 at 407 per French J (as his Honour then was); Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 557 at 568 to 569 per Drummond J. 10 The concern of the courts as to the "costs implications" of a "universal rule", particularly in the context of high-volume decision-making, has long subsisted: Zhang v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 384 at 410. French J (as His Honour then was) there observed: This case is not an occasion for a general review, criticism or endorsement of the merits of the administrative procedures used by the Minister's delegates and officers. The Court has no direct knowledge of the resource implications of particular procedures, nor of the resources available to the Department to implement them. Oral hearings by the ultimate decision-makers could be provided for all applicants using the simple artifice of increasing the number of persons with appropriate delegations. However it may be, and there is some hint of this in the evidence, that such a solution would also put the final decision-making responsibility in the hands of more junior and less experienced officers than those who currently hold delegations. In my opinion, courts should be reluctant to impose in the name of procedural fairness detailed rules of practice, particularly in the area of high volume decision-making involving significant use of public resources... But considerations such as costs and the impact of requiring an oral hearing in an area of administrative decision-making which may be a "high volume" jurisdiction are but two of the considerations that may assume relevance. Such observations are in any event but a more specific instance of the broadly expressed proposition that it is impossible to lay down in advance any universal rule as to the content of natural justice or procedural fairness: Mobil Oil Australia Pty Ltd v Commissioner of Taxation (1963) 113 CLR 475 at 503 to 504 per Kitto J. "The rules of procedural fairness do not have immutably fixed content": Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7 at [156], (2013) 295 ALR 638 at 681 per Hayne, Crennan, Kiefel and Bell JJ. The requirements of natural justice, it has long been recognised, must "depend upon 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": Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 per Tucker LJ; Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 at 526 per Gibbs J. 11 But there nevertheless remain some circumstances in which the rules of natural justice or procedural fairness may require an administrative decision-maker to hold an oral hearing. Where credibility findings are centrally relevant to the findings to be made, and where a claimant may be disadvantaged if an oral hearing were not to be held, an oral hearing may be required: Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591. When that case was decided the delegate had a discretion as to whether a claimant for refugee status should be interviewed. It was concluded that the rules of natural justice did not entitle a claimant seeking review of an adverse decision to an oral hearing. But, in the course of so deciding, Black CJ, Lee and Heerey JJ referred to the following observations made by Wilson J in Re Singh and Minister of Employment and Immigration (1985) 17 DLR (4th) 422 at 464: I should note, however, that even if hearings based on written submissions are consistent with the principles of fundamental justice for some purposes, they will not be satisfactory for all purposes. In particular, I am of the view that where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing. Appellate courts are well aware of the inherent weakness of written transcripts where questions of credibility are at stake and thus are extremely loath to review the findings of tribunals which have had the benefit of hearing the testimony of witnesses in person… I find it difficult to conceive of a situation in which compliance with fundamental justice could be achieved by a tribunal making significant findings of credibility solely on the basis of written submissions: (1994) 48 FCR 591 at 600. Black CJ, Lee and Heerey JJ ultimately concluded: …we think such an analysis leads to the conclusion that the rules of natural justice do not mandate an oral interview by the decision-maker with every applicant for refugee status, although in particular cases, for example where a real issue of credibility is involved or it is otherwise apparent that an applicant is disadvantaged by being limited to submissions or responses to the decision-maker in writing, it may be that observance of the fundamental requirements of natural justice can only be satisfied by a determination made upon an oral hearing: (1994) 48 FCR 591 at 602. See also: T v Refugee Status Appeals Authority [2004] NZAR 552 at [18] per Miller J; Lymberopoulos v Police [2006] SASC 360 at [45] per White J. Similarly, in Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140 at [33], (2003) 128 FCR 359 at 365, Hely J said that in "particular cases, for example, where a real issue of credibility is involved or it is otherwise apparent that an applicant is disadvantaged by being limited to written submissions, it may be that observance of the fundamental requirements of natural justice could only be satisfied by a determination made on an oral hearing". 12 Different circumstances may dictate a different conclusion. Thus, for example, in Ashmore v Commissioner for Superannuation [2000] FCA 1816, (2000) 32 AAR 231 a hearing before the Administrative Appeals Tribunal had commenced. But the Tribunal was improperly constituted by a single member. The hearing was adjourned and continued before three members. One of the issues on appeal was whether the Tribunal had erred "by basing its decision on findings involving the rejection of the applicant's oral evidence, when two of the members of the tribunal had not observed the applicant giving evidence": [2000] FCA 1816 at [46], (2000) 32 AAR 231 at 244. In the course of concluding that there had been a denial of procedural fairness, Moore J referred to the "importance of a judicial officer observing witnesses giving oral evidence" and continued: [58] However these proceedings concern administrative and not judicial proceedings. The question of whether procedural fairness might require a hearing at which evidence would be given orally (if the credibility of a party to the administrative process is or may be important) before an administrative decision is made is not susceptible of a single answer of universal application. The question has arisen in a variety of contexts and the answer almost invariably lies in the terms of the applicable statute and the circumstances of the particular case… [59] It cannot be doubted that a person who must ascertain what the facts are can often derive an advantage from seeing a person give an account of the facts where credibility is in issue. As Gleeson CJ said in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (at para 4): "Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive." [60] It is for this reason that the examination of a witness where credit is in issue by use of a telephone is deprecated:… This decision, however, was reversed on appeal: Commissioner for Superannuation v Ashmore [2001] FCA 666. The Full Court concluded that Ms Ashmore had elected not to give the oral evidence she had previously given to the single member again before the Tribunal constituted by three members. But for this election, the Commissioner accepted that "it would have been necessary for the Tribunal, properly constituted to hear the matter afresh": [2001] FCA 666 at [17]. 13 Even in circumstances where credibility findings may form a basis upon which findings are to be made, it may be that an oral hearing is not required where questions of credibility are resolved primarily by reference to (for example) inconsistencies in a claimant's own account of the relevant facts, rather than upon more generally expressed assessments as to a claimant's demeanour, sincerity or reliability: cf. MZYUM v Minister for Immigration and Citizenship [2013] FCA 51 at [73] per Dodds-Streeton J. Similarly, in Tinkerbell Enterprises Pty Ltd v Takeovers Panel [2012] FCA 1272 at [111], (2012) 208 FCR 266 at 298 Collier J was "not persuaded that Chen is authority for the proposition that in all cases where credibility of witnesses is an issue, the requirements of natural justice can only be satisfied by an oral hearing". 14 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. The "essence of natural justice", it has recently been said, "is fairness - it [h]as its root as a legal conception and it lies at the heart of its operation": TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83 at [108] per Allsop CJ, Middleton and Foster JJ. The more a decision may depend upon an analysis of documents, the less a fair hearing may require an oral hearing; the more centrally relevant to the administrative decision to be made may be an account of conversations or a personal account of conduct, the more likely may be a conclusion that a fair hearing may require an oral hearing: cf. Lloyd v McMahon [1987] 1 All ER 1118 at 1156 per Lord Keith. Similarly, the greater the degree of inconsistency between accounts being provided or between information and submissions, the greater may be the prudence of an oral hearing: Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 516 per Aickin J. 15 In the present statutory context, no support should be given to any broadly expressed conclusion that all applicants for refugee status are entitled to an oral hearing in all circumstances. Invariably questions of credit are involved and quite frequently claims of the refugee applicant are resolved substantially by reference to findings made as to credibility. On occasions, those findings are founded upon demeanour; on other occasions those findings are founded upon inconsistencies in documents sought to be relied upon or the paucity of documents supporting claims made orally. And it may well not be possible to determine in advance of a hearing whether findings as to credibility will be made or the basis upon which adverse findings may be made. Even greater reason for caution emerges when even cursory consideration is given to what an oral hearing may entail, including a consideration of the possible need for interpreters and other assistance to those who may suffer an intellectual or other disability which prevents them from adequately presenting or impedes their ability to present a claim in writing. To the extent that the costs incurred in providing an oral hearing is a consideration of relevance in determining the content of procedural fairness, those costs in the present area of government decision-making could well be considerable. 16 It is unnecessary, however, to further pursue the circumstances in which an oral hearing may be required or what an oral hearing may entail. Clearly enough, whether the rules of natural justice or procedural fairness require an oral hearing depends upon the facts and circumstances of each individual case, including the statutory context in which decisions are required to be made. No one factor, be it recourse to the touchstone of credibility or personal disadvantage, provides any infallible guide to when an oral hearing may be required in order to ensure an affected person has been given a "fair" opportunity to be heard.

A legitimate expectation as to the procedure to be followed 17 In the circumstances of the present case, it is sufficient to conclude that the Appellant had a legitimate expectation either that the Independent Merits Reviewer who conducted the interview in January 2012 would make the recommendation to the Minister, or a legitimate expectation - in the event that someone other than that Reviewer made the recommendation - that an oral hearing would first be conducted. The legitimate expectation in the present case was that the Reviewer who made the recommendation would first hear from the Appellant. 18 However expressed, that legitimate expectation is founded upon both: the fact that an oral hearing was conducted before the Independent Merits Reviewer in January 2012; and the substance of what was said by that Reviewer. Although caution has been directed at the use of the term "legitimate" (e.g., Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 at [61], (2003) 214 CLR 1 at 20 per McHugh and Gummow JJ), it remains a useful concept when considering "what must be done to give procedural fairness to a person whose interests might be affected by an exercise of power": Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 39 per Brennan J. This observation was accepted by McHugh and Gummow JJ in Ex parte Lam, supra, as "representing the law in Australia": [2003] HCA 6 at [83], (2003) 214 CLR 1 at 28. 19 Legitimate expectations have been held to arise in a variety of contexts. Of present relevance is the acceptance that a legitimate expectation may arise by reason of statements made. Thus, for example, in Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648 a legitimate expectation had been created by reason of a published statement of government policy as to how a discretionary power would be exercised. And, in Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 those administering the migration legislation in Hong Kong were held to an announcement of government policy, including a statement that each claimant would be interviewed. In dismissing an appeal, the Privy Council concluded: …In the opinion of their Lordships the principle that a public authority is bound by its undertakings as to the procedure it will follow, provided they do not conflict with its duty, is applicable to the undertaking given by the Government of Hong Kong to the applicant, along with other illegal immigrants from Macau, in the announcement outside the Government House on October 28, that each case would be considered on its merits: [1983] 2 AC at 638. See also: e.g., Minister for Immigration and Ethnic Affairs v Haj-Ismail (1982) 57 FLR 133; Century Metals and Mining NL v Yeomans (1989) 40 FCR 564; Hazelbane v Doepel [2008] FCA 290 at [23] to [32], (2008) 167 FCR 325 at 332 to 334 Mansfield J. More recently, and in the context of recommendations made by an Independent Merits Reviewer, in WZARB v Minister for Immigration and Citizenship [2013] FCA 523, (2013) 302 ALR 657 an assurance had been given to view an identity card. Logan J concluded that "the appellant was entitled to believe not just that the reviewer would be as good as his word but that, if his examination of the ID card raised anything potentially adverse to his claim for refugee status, he would be given an opportunity to make a further submission on that subject before the review was concluded": [2013] FCA 523 at [31], (2013) 302 ALR 657 at 668. So, too, may a legitimate expectation arise by reason of conduct. An applicant for the renewal of approval to carry on the business of insurance may thus have a legitimate expectation that a renewal will be approved, unless some good reason exists for refusing to renew it: FAI Insurances Ltd v Winneke (1982) 151 CLR 342. 20 In the case now before this Court it may be noted that no explanation has been provided to either the Appellant or the Court as to why the Independent Merits Reviewer who conducted the interview in January 2012 did not make the recommendation to the Minister. Nor was any notice given to the Appellant that that Reviewer would not in fact be making the recommendation. 21 Administrative decision-makers may, of course, conduct an oral hearing and thereafter become unavailable to further participate in the administrative decision-making process. And there is no universal requirement that a party who has initially been given the opportunity of an oral hearing need necessarily be also entitled to be heard by the final decision-maker. Again, those factors which may indicate that a further oral hearing may or may not be required are those which may have first indicated the prudence of an oral hearing. 22 In the case of the Refugee Review Tribunal, s 422 of the Migration Act 1958 (Cth) expressly provides, for example, for the reconstitution of the Tribunal where a member becomes unavailable. In Abujoudeh v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1351, (2001) 115 FCR 179 the claimant had appealed to the Refugee Review Tribunal. The Tribunal member, however, resigned and the case was allocated to a different Tribunal member. The claimant was advised of the resignation and offered an opportunity to submit further information but was not invited to present oral arguments. The decision refusing the claim was affirmed by the Tribunal. Ryan J dismissed an application seeking to have the Tribunal decision set aside. In doing so, his Honour referred to an earlier decision of Hely J in Ahmed v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 343 at 351 in which his Honour made reference to a Refugee Review Tribunal having made "sweeping findings as to the credibility of the applicant without ever hearing from him" and continued at 189: [31] This was not an extreme case of the kind adverted to by Hely J in Ahmed because the Tribunal's conclusions of implausibility were not based on an assessment by the Member who previously constituted the Tribunal, or anybody else, of the applicant's demeanour or apparent candour or lack of it when giving evidence. Rather, the Tribunal found those of the applicant's claims which it rejected to be implausible because they were inconsistent or difficult to reconcile with undisputed facts or general knowledge acquired by the Tribunal in the course of its experience. For example, the Tribunal pointed…to the applicant's obtaining and continued possession of a current passport. The Tribunal also indicated, in the same context, the improbability that the applicant's parents were unaware, as he claimed, of his intensive Party activities. Similarly, the discrepancies which the Tribunal detected in the three summonses to the applicant to attend Court, could not have been overcome by an appearance of candour or truthful demeanour on the part of the applicant had he given evidence before the Tribunal as reconstituted. Likewise, the Tribunal's conclusion…in relation to the Good Conduct or Good Character Certificate depended on its own examination of that document and its objective assessment of the likelihood of its having been issued in the circumstances asserted by the applicant. The Tribunal also relied on internal inconsistencies between the applicant's claims to have been in hiding for some months before leaving for Australia and other parts of his account… His Honour continued: [32] It will be seen, even from the brief rÉsumÉ which I have just given, that the approach which led the Tribunal to characterise certain parts of the applicant's claims as implausible, was based on a dispassionate analysis of the content of the applicant's evidence, not the manner in which it was given. It is therefore, highly unlikely that, had the applicant been personally heard and seen by Ms Wood, his explanations of the inconsistencies on which she relied would have been so convincing or that his demeanour would have been so disarmingly frank as to overcome all or most of her objections. The decision of Hely J in Ahmed was affirmed on appeal: Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362, (2001) 113 FCR 541. Similarly, in MZXDH v Minister for Immigration and Multicultural Affairs [2007] FCA 719 Finkelstein J also concluded that no error was exposed by the Refugee Review Tribunal as reconstituted basing its findings on the tape recording and transcript of an earlier hearing. The claimant had there also been informed of the fact that the Tribunal member who had conducted an oral hearing had ceased to be a member of the Tribunal and that the Tribunal as reconstituted would listen to the tape recordings of the hearing.

An expectation founded upon statements made and the fact of an oral hearing 23 In the present appeal, and by way of contrast to the facts in both Abujoudeh, supra, and MZXDH, supra, the Appellant had no reason to believe anything other than that the recommendation to the Minister in his case would be made by the first Independent Merits Reviewer before whom he had an oral hearing. Indeed, his understanding from what was communicated to him during the course of that interview was that it would be that Interviewer who would proceed to make the recommendation. So much follows from what he had been told by that Reviewer, including the following comments made at the outset of the interview: "I just want to start by explaining what my role is and that is to undertake a fresh re-hearing of your claims. That means looking at all the information you have provided and making a completely new and independent assessment of the evidence, and making a recommendation as to whether you are found to be a refugee. My role is to provide advice and recommendation only. Once I have completed my report and made a recommendation on your refugee status, this will be given to the Minister for Immigration and Citizenship for consideration. If, following my assessment of your claims, it is my recommendation that you are found to be a refugee, the Minister may intervene to allow you to lodge an application for a visa, including a protection visa. The purpose of this interview is to take a new look at your claims. So what I'll be doing today is asking you some questions about the information you or anyone who has provided information on your behalf has given during the refugee status assessment process." This understanding was only reinforced by the following comments made at the conclusion of the interview (without alteration): "What will happen now is - obviously you've provided me with a lot of information today so I won't be able to make any sort of, come to any conclusion or recommendation. What I'll do is consider all the information that you've provided today as well as the information you've provided throughout the process, together with any - if there's any further articles or information that you wanted to provide once I've received that, and then I will make my recommendations." 24 Whatever may have been the position had the Appellant been told that the Independent Merits Reviewer was (for whatever reason) no longer available to complete the review process, he was not told of that unavailability. Where a claimant has been led to believe by both statements made by a person who was an Independent Merits Reviewer and by that person's conduct in conducting a hearing or interview, that the claim is being processed by that person, the claimant has a legitimate expectation that the process will be completed by that person. Alternatively, a claimant who has participated in an administrative process whereby an oral hearing or interview has been conducted has a legitimate expectation that any recommendation made to the Minister will be a recommendation made following the same administrative process. In this case, that involved an oral hearing by the Independent Merits Reviewer who made the adverse recommendation to the Minister. 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. 25 "[W]hat must be demonstrated is unfairness, not merely departure from a representation": Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 at [34], (2003) 214 CLR 1 at 12 per Gleeson CJ. In the circumstances of the present case, the Appellant was put in the position whereby he justifiably thought he was participating in a review process involving him being extended an opportunity to put his claims in person. But he was thereafter stripped of the benefit of that process and without warning. He became an unwilling participant in a review process whereby he was given no opportunity to put his claims in person to the Independent Merits Reviewer who made the recommendation. That was unfair because the Appellant received a different and inferior review from the review that he had been led to expect would be conducted. 26 Both of the expectations identified above, it should be noted, are expectations as to the procedure to be followed or expectations as to what procedural fairness required in the circumstances of the present case. No question arises as to any reliance upon the concept of a "legitimate expectation" providing the foundation for any "substantive" - as opposed to a procedural - right. 27 Although it is the case that the adverse findings as to credibility contained in the July 2012 recommendation were founded in many cases upon inconsistencies in the evidence and claims being made by the Appellant, it does not defeat the legitimate expectation held out to the Appellant as to the procedure to be followed in resolving his claims. If it be necessary for the Appellant to point to some "prejudice" by reason of his not receiving an oral hearing by the Reviewer who made the ultimate recommendation, that prejudice is exposed by the very fact that those administering the review process did not do what they had said they would. Assurances as to the procedure to be followed, once given, should not be lightly departed from. An unexplained departure from such assurances only encourages disquiet by those who thereafter experience an adverse outcome. 28 Moreover, all that it was necessary for the Appellant to establish was that he was "deprived…of the possibility of a successful outcome": cf. Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147 per Mason, Wilson, Brennan, Deane and Dawson JJ. Circumstances may arise in which a party may have been denied the opportunity to make submissions in respect to a document or a particular fact which is otherwise unanswerable; an opportunity to make submissions, in such a case, may be little more than a formality before the same result may well be reached. Even then, "the law is strewn with examples of open and shut cases which, somehow, were not": John v Rees [1970] Ch 345 at 402 per Megarry J. So, too, may a denial of natural justice assume little more than a formality when the decision ultimately made was founded upon grounds totally discrete from any procedural irregularity. But such is not the present case. The difficulty for the Respondent Minister in the present case is that the Independent Merits Reviewer who made the July 2012 recommendation did not have the opportunity to see the Appellant in person. Listening to a tape recording or reading a transcript is no substitute for extending to the Appellant 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. "It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact": Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 to 146. As Mason, Wilson, Brennan. Deane and Dawson JJ there went on to observe, "this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial". See also: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 at [104], (2000) 204 CLR 82 at 122 per McHugh J. It is to be constantly recalled that the rules of procedural fairness are not directed at the outcome of an administrative process but rather at ensuring a fair hearing. "It is…not to the point to ask whether the…factual conclusions were right. The relevant question is about the…processes, not [the] actual decision": SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [25], (2006) 228 CLR 152 at 160 per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. 29 Even if no oral hearing was required to satisfy the requirements of procedural fairness, the present Appellant suffered a "practical injustice" (Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6 at [37] to [38], (2003) 214 CLR 1 at 14 per Gleeson CJ) or a practical detriment by the change of the administrative process which turned an oral hearing or an administrative process including an interview into merely another opportunity to make written submissions. And he was given no opportunity to address this detriment, by making submissions to the Independent Merits Reviewer who made the adverse recommendation as to how the defeat of his legitimate expectation might be redressed. There was a fundamental change to the administrative process being pursued without the Appellant being alerted to the change. 30 The decision record of the Independent Merits Reviewer who made the adverse recommendation in July 2012 referred to his task as being "to continue with" the review commenced by the earlier Reviewer. This language reveals a lack of appreciation that the Appellant by then had suffered a defeat of his legitimate expectation. Had the Appellant been accorded procedural fairness, the Independent Merits Reviewer may have been persuaded to take steps to redress that detriment. 31 Expressly rejected is the Respondent Minister's contention that the Appellant was seeking "a second oral hearing". The interview conducted by the Independent Merits Reviewer in January 2012 did not satisfy any requirement on the part of the second Independent Merits Reviewer to conduct an oral hearing or interview.

The failure to have regard to a relevant consideration - no procedural unfairness? 32 The second of the two ways in which the Appellant advances his claim as to a denial of procedural fairness focusses attention upon "visible scarring" on his arm not being taken into account in the findings made that he would not have a sufficient "profile to come to the attention of the authorities in Sri Lanka, as per paragraphs 104 and 105 of the IMR Recommendation". 33 Paragraphs [104] and [105] of the recommendation to which this argument is directed provide as follows: 104. Having examined the claimant's case including his previous experiences with the authorities and other groups in Sri Lanka, I find that the claimant is a Tamil from Jaffna who has left Sri Lanka twice using a genuine passport issued in his own name and who has travelled back to Jaffna on the same passport. I found that there has been no change in his risk profile during the period he has held his passport. I acknowledge that persons returned to Sri Lanka, whether failed asylum seekers, including persons of Tamil ethnicity, or other deportees, are likely to be subjected to closer scrutiny than other travellers on return. I accept that there is a greater interest in these arrivals on the part of the authorities. 105. In view of the profile of the claimant, however, I find that there are not substantial grounds for believing that there is a real risk of significant harm for this claimant as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka. 34 This part of the Appellant's argument expressed as either a failure to take into account a relevant consideration or as a denial of procedural fairness is, with respect, far less persuasive than his former argument. 35 The argument lacks persuasive force by reason of the fact that the Independent Merits Reviewer who made the July 2012 recommendation accepted the claims made by the Appellant. He was given "the benefit of the doubt" by that Reviewer. With respect to the "visible scarring", the reasons for the recommendation provided by the Independent Merits Reviewer referred on a number of occasions to the account of events given by the Appellant in April 2004 when the injuries were said to have been inflicted. Paragraph [39] of those reasons, for example, thus states as follows: 39. He stated that he was abducted at about 7pm and taken to a house behind the EPDP camp and he was kept there until about 4.30am the following morning at which time he was released. During his detention he was continuously assaulted and cuts were inflicted on his left arm and his head was bashed. He was asked whether anyone else was held and he replied that he was singled out but he remembers that one of the others involved in setting the fire was also assaulted and he has not seen him again. The Appellant was a supporter of the United National Party. The Reviewer returned to the claims being made in respect to the events in April 2004 when his reasons later record the following: 82. I am prepared to give the claimant the benefit of the doubt and accept that he was detained by the SL Navy when he was a youth for not complying with a curfew as I am prepared to accord the claimant the benefit of the doubt regarding the incident of April 2004 in relation to the EPDP and accept that he was detained by them and may have been mistreated during the period of detention which lasted a few hours. I accept this, since it is not inconsistent with the behaviour of this paramilitary group especially at that time and towards the general population in the Jaffna area. I do not accept that the reason for his detention was his support for Maheswaran. 36 The claims were thus taken into account. And no prejudice flows to the Appellant by not being able to present these claims in person to the Independent Merits Reviewer who ultimately made the recommendation in July 2012. 37 The second of the two arguments advanced on behalf of the Appellant is rejected.

CONCLUSIONS 38 It is concluded that the appeal should be allowed. A declaration should also be made that the Second Respondent failed to observe the requirements of procedural fairness. Orders 1 and 2 as made by the primary Judge should be set aside. 39 There is no reason why the First Respondent should not pay the costs of the appeal. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Flick and Gleeson.

Associate: Dated: 20 October 2014 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2233 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

ADOLFO GENTILE IN HIS CAPACITY AS INDEPENDENT MERIT REVIEWER

JUDGES: FLICK, NICHOLAS AND GLEESON JJ DATE: 20 OCTOBER 2014 PLACE: SYDNEY

NICHOLAS J 40 I have had the advantage of reading the reasons for judgment of Flick and Gleeson JJ. I agree that the appeal should be allowed and that orders 1 and 2 made by the primary judge should be set-aside. I also agree that a declaration should be made declaring that, in recommending to the first respondent that the appellant was not a person to whom Australia has protection obligations, the second respondent failed to observe the requirements of procedural fairness. 41 Independent Merits Review (IMR) is undertaken for the purpose of the Minister considering whether to exercise powers conferred upon him by ss 46A and 195A of the Migration Act 1958 (Cth) (the Act). In Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319, the High Court held at [77] that where a reviewer conducts an IMR for the purposes of the Minister considering whether to exercise power under s 46A or s 195A "the assessment and review must be procedurally fair and must address the relevant legal question or questions". 42 The answer to the question whether an applicant for refugee status whose claims are the subject of an IMR is entitled to an oral hearing before the person entrusted with the conduct of the review is likely to depend on a range of factors including the nature and content of the questions upon which an acceptance or rejection of the particular applicant's claim to refugee status depend. Another factor that is of particular significance in this case concerns statements made either before or in the course of an IMR as to how such a review will be conducted. 43 The contents of the requirements of procedural fairness may be affected by what is said or done in the course of the decision-making process. If at the commencement of the process a decision-maker represents to the person affected that he or she will be given an oral hearing, then that may give rise to a reasonable expectation that the representation will be fulfilled or, at least, that it will not be departed from without reasonable notice. Whether or not there is a denial of natural justice in the event of such a departure is a matter that must be considered in light of all the circumstances, including whether or not the person affected was given notice of the change in procedure before the decision was made, and whether it could be said that the person affected had been given a fair hearing in spite of him or her not being given an oral hearing. 44 In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (Lam) the applicant's visa was cancelled by the Minister pursuant to s 501(2) of the Act. The applicant challenged the validity of that decision on the ground that he had been denied procedural fairness in circumstances where, in the first place, an officer of the Minister's Department had written to the applicant indicating that it wished to contact the carer of the applicant's children (Ms Tran) in order to assess the possible effects upon them of any decision to cancel the applicant's visa and, in the second place, neither the Minister nor any officer of the Department contacted the carer before the Minister decided to cancel the applicant's visa. 45 It is desirable to refer to the reasons of Gleeson CJ in Lam in some detail because the first respondent (the Minister) relied heavily on his Honour's remarks in support of a submission that there had been no lack of procedural fairness in this case. 46 Gleeson CJ said at [34]-[38]: 34. … [I]t is clear that the content of the requirements of fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed. So, for example, if a decision-maker informs a person affected that he or she will hear further argument upon a certain point, and then delivers a decision without doing so, it may be easy to demonstrate that unfairness is involved. But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness, the 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. 35. The applicant relies upon Minister for Immigration and Ethnic Affairs v Teoh in support of the proposition that it is unnecessary for him to show that, following the letter of 7 November 2000, he had any particular expectation; he may base his case upon what he was reasonably entitled to expect. That, however, depends on the nature of the unfairness said to be involved. In any event, what was the applicant reasonably entitled to expect? It is said on his behalf that he was reasonably entitled to expect that the Departmental officers would not change their plans about contacting Ms Tran without first letting him know. But there could have been a number of reasons why they might change their plans, without necessarily having to inform the applicant. Let it be supposed, as may well be the case, that they changed their minds because they realised that they had already heard from Ms Tran, they did not doubt what she had to say, and it was unlikely that there was anything she could usefully add to what had already been said. Such a view may have been reinforced by the receipt of the letter from the applicant's father. The applicant does not seek to show that such a view was not reasonably open. I do not accept that it would have been reasonable to expect the Department to write to the applicant if for any reason there was a change of plan about contacting Ms Tran. 36. The more fundamental problem facing the applicant, however, relates to the matter of unfairness. A statement of intention, made in the course of decision-making, as to a procedural step to be taken, is said to give rise to an expectation of such a kind that the decision-maker, in fairness, must either take that step or give notice of a change in intention. Yet no attempt is made to show that the applicant held any subjective expectation in consequence of which he did, or omitted to do, anything. Nor is it shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment. 37. A common form of detriment suffered where a decision-maker has failed to take a procedural step is loss of an opportunity to make representations. Attorney-General (Hong Kong) v Ng Yuen Shiu was such a case. So, according to the majority, was Haoucher v Minister for Immigration and Ethnic Affairs. A particular example of such detriment is a case where the statement of intention has been relied upon and, acting on the faith of it, a person has refrained from putting material before a decision-maker. In a case of that particular kind, it is the existence of a subjective expectation, and reliance, that results in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. 38. No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness. And, as I have already indicated, there is no warrant for a conclusion that there was a failure properly to take into account the interests of the applicant's children. (footnotes omitted) 47 There are a number of strands to Gleeson CJ's reasoning. It begins with an acceptance of the proposition that the requirements of fairness may be affected by representations made in the course of the decision-making process, but that the ultimate question is whether there has been unfairness as opposed to mere disappointment. Next is the need to show, for the purpose of establishing unfairness, that the applicant did or did not do something as a result of his reliance upon the representation concerned which caused him some detriment: cf. WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 (Lee, Hill and Carr JJ) at [58]. Finally, there is his Honour's emphasis on the need for an applicant to show that he has suffered some practical injustice. 48 In the present case the representations made to the appellant during the course of the interview with the first reviewer bore upon the content of the obligation to extend procedural fairness. The appellant was reasonably entitled to expect that his claims would be considered by the person by whom he was interviewed and that, if for some reason that might not occur, he would at least be told of that fact so that he might seek the oral hearing that he thought he had already received. Whether or not the second respondent would have been bound to grant the appellant an oral hearing if he requested one need not be determined. Here, for reasons not explained in either the reasons for decision under review or any other evidence, the appellant was not told that the second respondent had been appointed to review his case, thereby depriving the appellant of the opportunity to apply for an oral hearing before the decision-maker who had been appointed to review the appellant's claims. 49 It is true that there is no evidence from the appellant to indicate what he would have done if given the opportunity to attend an oral hearing before the second respondent or, at least, if he had been given the opportunity to request an oral hearing before the second respondent. But in circumstances where the appellant accepted the invitation to participate in an oral hearing before the first reviewer, and in the absence of any evidence to suggest that he would have responded differently if invited to attend a further interview before the second respondent, I would infer that it is more likely than not that the appellant would have sought an oral hearing before the second respondent if he had been told that the first reviewer by whom he was originally interviewed had been replaced. 50 The Minister submitted that there was no practical injustice suffered by the appellant because the decision-maker's reasons show that demeanour played no part in the decision-maker's rejection of the appellant's claims. It may be accepted that demeanour played no part in the decision. It is difficult to see how it could have done in the absence of an oral hearing. What is significant, in my view, is that the second respondent's findings related to matters upon which demeanour might reasonably be expected to have had some bearing had it been open to the second respondent to take demeanour into account. 51 The substance of the Minister's submission is that an oral hearing would not have made any difference to the outcome of the review because, in the second respondent's words, the appellant's evidence was so replete with discrepancies and inconsistencies, that the second respondent was never going to be satisfied that the appellant was a person to whom Australia owed protection obligations even if he had received an oral hearing. In my view, this submission should be rejected. 52 I shall attempt to demonstrate the difficulty I have in accepting the Minister's submission by reference to the following example. The second respondent characterised as "[a] central plank" in the appellant's case, the appellant's claim that he was close to a particular Tamil politician (Maheswaran) who he claimed to have supported in 2004 when the politician was standing as a candidate for a seat in Jaffna. The second respondent concluded, relying upon the contents of a newspaper article indicating that in 2004 the politician stood for election in Colombo, that the appellant's evidence on this topic was incorrect. After noting that the appellant conceded that his evidence was incorrect, the second respondent continued at [80]-[81] of his reasons: [80] … [The appellant] conceded this only after a report from a newspaper was read to him indicating that in the 2004 election Maheswaran had stood for a seat in Colombo. He stated that he had been confused about this, yet he had insisted that he had lit fires to stop opponents of this man from having a political gathering. His explanation as to the reason he had lit fires in the circumstance when this man was not standing for election in the local electorate, was simply that he was supporting the Tamil cause. [81] I do not accept that this kind of error was due to memory lapse or confusion, nor indeed to the effects of detention, as he has claimed from the beginning that he was supporting this candidate in the 2004 election in Jaffna. Furthermore, he consistently claimed that it was his support for Maheswaran that caused the EPDP to abduct him, torture him and pursue him to this day and throughout his absence from Karainagar. I conclude that the claimant may have known Maheswaran from his time at the sports club but that the claimant was neither close to, nor a supporter of, the political campaigns of Maheswaran. 53 It thus appears that the appellant claimed that he was confused about whether the politician stood for a seat in Jaffna or Colombo, evidence which the second respondent rejected. And yet there is nothing referred to in the second respondent's reasons for decision to indicate why that was a matter about which the appellant might not be genuinely confused. It could not be said that the appellant's evidence that he was confused was far-fetched, inherently implausible or contradicted by other evidence. Moreover, at an earlier stage of his interview with the first reviewer, the appellant had said (at transcript page 14, lines 14-17) that in 2004 the politician was seeking election in Colombo. In those circumstances, I am not prepared to conclude that the second respondent could not have taken a different view of the appellant's evidence if the appellant had been given an oral hearing at which the second respondent could have directly questioned the appellant and observed his demeanour when responding to such questions. 54 The second respondent rejected the appellant's claims because he did not believe the appellant. 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. Although doubts are often expressed about the reliability of assessing the credibility of witnesses based upon their demeanour, experienced judges are often influenced by the way in which a witness gives his or her evidence especially in circumstances where there is a lack of objective evidence with which to assess the uncorroborated evidence of a witness. Judges are usually most reluctant to decide matters relating to the credibility of a witness without being given the opportunity to observe the witness giving his or her evidence. Of course, sometimes this might be unavoidable because, for example, a witness is unavailable or unwilling to give oral evidence, but that was not the position in this case. 55 There are a number of cases in which it has been held that the Refugee Review Tribunal was not required to give the claimant an oral hearing after it was re-constituted due to the unavailability of the member before whom the claimant originally gave evidence. The two cases referred to by counsel for the Minister were MZXDH v Minister for Immigration and Multicultural Affairs [2007] FCA 719 (Finkelstein J) and Abujoudeh v Minister for Immigration & Multicultural Affairs (2001) 115 FCR 179 (Ryan J). Both decisions, it seems to me, involve cases in which it could be inferred that the claimant's evidence was so far-fetched or inherently implausible that any consideration of demeanour or candour could not have resulted in a different outcome. In Abujoudeh, Ryan J said at [32]: It will be seen, even from the brief rÉsumÉ which I have just given, that the approach which led the Tribunal to characterise certain parts of the applicant's claims as implausible, was based on a dispassionate analysis of the content of the applicant's evidence, not the manner in which it was given. It is therefore, highly unlikely that, had the applicant been personally heard and seen by Ms Wood, his explanations of the inconsistencies on which she relied would have been so convincing or that his demeanour would have been so disarmingly frank as to overcome all or most of her objections. 56 Accepting that the second respondent's rejection of the appellant's claims was not based upon demeanour, it does not follow, and I would not infer, that it would not have made any difference to the appellant's prospects of obtaining a favourable outcome if he had been afforded the opportunity to participate in an oral hearing at which he could be observed by the second respondent while giving evidence. As Gleeson CJ observed in Re Refugee Review Tribunal; Ex Parte Aala (2002) 204 CLR 82 at [4]: Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive. 57 In the present case the appellant was deprived of the opportunity to apply for an oral hearing before the second respondent, an application which, in my view, the Minister would have been hard pressed to resist. In the circumstances, I am satisfied that the second respondent denied the appellant procedural fairness by failing to notify the appellant of his appointment in place of the first reviewer and thereby denying the appellant the opportunity to seek an oral hearing before the second respondent. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.