A denial of procedural fairness?
9 On behalf of Mr Yang it is contended that:
the rules of procedural fairness apply to the making of a "determination" pursuant to s 26(3);
and that there was a denial of procedural fairness by reason of:
the failure to provide any advance notice of the making of such a determination; and/or
the failure to "provide [him] with an opportunity to be heard in respect of those decisions".
10 The Respondent Minister accepts that if he "was obliged to give Mr Yang prior notice of [the making of the 6 December 2019 decision] and an opportunity to make representations about why such a decision ought not to be made" he did not discharge "that obligation". The "Minister's submission is that such a hearing was not required, either because that was not part of the content of procedural fairness in the circumstances, or because the rules of procedural fairness to that extent were impliedly excluded by the Act". To the extent that there is a difference between these two limbs to the one submission, both limbs of the submission are rejected.
11 In the absence of either an express or implied exclusion of the rules of procedural fairness, those rules "generally" apply when a decision affects a claimant's right, property or interest: Kioa v West (1985) 159 CLR 550 at 582 ("Kioa v West"). Mason J (as his Honour then was) summarised the position as follows:
It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of the benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it ... The reference to "right or interest" in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation as well as to proprietary rights and interests ...
His Honour also later observed (at 584):
The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention …:
These observations have since been repeatedly cited with approval: e.g., Huddleston v Aboriginal Land Commissioner [2010] FCAFC 66 at [36], (2010) 184 FCR 551 at 560-561 per Keane CJ, Spender and Barker JJ.
12 As recognised in Kioa v West, the general application of the common law rules of procedural fairness can be excluded by a "contrary statutory intention". But the exclusion of those rules is not to be lightly assumed: Commissioner of Police v Tanos (1958) 98 CLR 383 at 396 ("Tanos"). Dixon CJ and Webb J there observed:
… But the rule is subject to a sufficient indication of an intention of the legislature to the contrary. Such an intention is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations. The intention must satisfactorily appear from express words of plain intendment. …
Partly in reliance upon Tanos, Mason CJ, Deane and McHugh JJ in Annetts v McCann (1990) 170 CLR 596 at 598 expressed the circumstances in which the common law would apply and the legislative ability to exclude those rules as follows:
It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: …
(citations omitted)
See also: Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4 at [182], (2008) 234 CLR 532 at 595-596 per Crennan J; Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7 at [152], (2013) 252 CLR 38 at 98 per Hayne, Crennan, Kiefel and Bell JJ.
13 The Australian Citizenship Act did not expressly exclude the common law rules - as some Commonwealth legislation in more recent years has done: e.g., Migration Act 1958 (Cth) (the "Migration Act"). See: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22, (2001) 206 CLR 57; Plaintiff S10-2011 v Minister for Immigration and Citizenship [2012] HCA 31 at [97] to [101], (2012) 246 CLR 636 at 666-668 per Gummow, Hayne, Crennan and Bell JJ.
14 But in support of its contention that the statutory scheme of the Australian Citizenship Act has impliedly excluded those rules, the Respondent relies upon:
the prospect that advance notice may thwart any exercise of power under s 26(3);
the nature of the criteria specified in s 26(3) being such that an affected person "is unlikely to be able to make meaningful representations"; and
the fact that an affected person may have a subsequent opportunity to be heard, namely an opportunity to seek pursuant to s 26(5) the revocation of a "determination" made pursuant to s 26(3).
None of these arguments, with respect, are persuasive. Of particular importance are the terms in which the power conferred by s 26(3) is expressed - namely a power to make a "determination" if satisfied as to either of those matters specified in s 26(3)(a) or (b).
15 As to the first of these three contentions, there are circumstances in which the giving of advance notice may thwart or frustrate the making of decisions: e.g., Leghaei v Director-General of Security [2005] FCA 1576 at [88] per Madgwick J. An appeal was dismissed: Leghaei v Director-General of Security [2007] FCAFC 37, (2007) 97 ALD 516. See also: Soh v Commonwealth [2008] FCA 520 at [94] to [96], (2008) 220 FCR 127 at 146-147 per Madgwick J. And there may be circumstances in which the statutory considerations a decision-maker needs to take into account may create obstacles in the path of a person seeking to make submissions. Even then, however, courts are loathe to exclude the rules of procedural fairness: e.g., Century Metals & Mining NL v Yeomans (1989) 40 FCR 564 at 588 per Fisher, Wilcox and Spender JJ. Such is not the present case. If it be the case that advance notice is frequently given of an intention to consider cancelling a visa, it is unclear why advance notice of an intention to make a "determination" under s 26(3) would be any more likely to thwart the administration of the Australian Citizenship Act than the giving of advance notice of an intention to revoke a visa would frustrate the administration of the Migration Act. Those who may accept "a pledge of commitment" remain subject to the control of the Minister and there is no reason to suggest that advance notice could not be given to those persons not to accept a "pledge" in advance of a decision being made.
16 Insofar as it is contended on behalf of the Respondent that the nature of the criteria specified in s 26(3) are such that an affected person "is unlikely to make meaningful representations", that contention is - with respect - without substance. It is far from uncommon to afford a person an opportunity to make submissions as to why a visa should not be cancelled. Indeed, it is generally the case that a person should be afforded such an opportunity. And, if the Minister is considering the relevance of the fact that a person has been charged with an offence, there is every reason why an affected person should be afforded an opportunity to be heard and such a person may well be in the best position to make submissions as to the nature of the offence in question and the circumstances in which it was committed (if at all). If the matter being considered is the prospect that an affected person "may be charged with an offence", the ability of an affected person to make submissions as to why that person should not be charged may well be limited - but the ability to make submissions as to the nature of the possible offence and its relevance to decisions under the Australian Citizenship Act remain a valuable opportunity which should not lightly be discounted.
17 The fact that an affected person may seek pursuant to s 26(5) the revocation of a "determination" made pursuant to s 26(3), with respect, provides no reason why an opportunity to be heard should not be provided when making the initial "determination". Although it may be accepted that a subsequent opportunity to be heard may, in an appropriate legislative context, provide a basis for excluding an opportunity to be heard at an earlier point of time or to "remedy" an earlier denial of procedural fairness (c.f., Carroll v Sydney City Council (1989) 15 NSWLR 541 at 548-549 per McHugh JA (Kirby P and Clarke JA agreeing); Day v Harness Racing New South Wales [2014] NSWCA 423 at [104], (2014) 88 NSWLR 594 at 615 per Leeming JA (McColl and Macfarlan JJA agreeing)), such an opportunity in the present context provides no such reason. Of importance is the fact that the power to make a "determination" pursuant to s 26(3) is confined to the Minister being "satisfied" of either of the two matters specified in s 26(3)(a) or (b). And in reaching a state of "satisfaction", neither of those two matters is of such a character that the Minister should not normally be required to give advance notice. There is no reason to infer that a procedurally unfair decision can be remedied by a subsequent procedurally fair opportunity to be heard.
18 Specifically rejected is the submission made on behalf of the Respondent Minister that "Parliament can be seen to have abrogated by necessary implication any otherwise implied obligation to afford a hearing in advance of the determination" by reason of depriving a pledge of commitment of legal effect only "if a determination is in force": s 26(6). No implication can be drawn from s 26(6) - that being a provision which simply expressly states a pledge of commitment cannot be made "before the end of the period specified in the determination". Why such an express statement as to the effect of a determination being "in force" impliedly excludes an obligation to afford procedural fairness before making such a determination remained elusive; indeed, if anything, s 26(6) only supports the imperative of providing a prior opportunity to be heard.
19 None of the considerations relied upon by the Respondent Minister support any implication that a decision made pursuant to s 26(3) need not attract the rules of procedural fairness. The considerations relied upon by the Respondent rise no higher than "indirect references, uncertain inferences or equivocal considerations": Tanos (1958) 98 CLR at 396. In the absence of a "determination" being made pursuant to s 26(3) of the Australian Citizenship Act, Mr Yang had a sufficiently certain "interest" or a "legitimate expectation" that he could proceed to make a pledge of citizenship, and that "interest" or "expectation" was sufficient to attract the rules of procedural fairness: Kioa v West (1985) 159 CLR at 582. His application for citizenship (and those of his dependent children) had been approved in February 2019 and the last remaining step to him achieving citizenship was the making of a pledge of commitment.
20 But the content of the rules of procedural fairness is necessarily dictated by not only the statutory context in which a decision is made but also the facts and circumstances of an individual case. "What is fair in a given situation", it has been said, "depends upon the circumstances": Mobil Oil Australia Pty Ltd v Commissioner of Taxation (1963) 113 CLR 475 at 504 per Kitto J ("Mobil Oil"). "What is appropriate in terms of natural justice depends on the circumstances of the case…": Kioa v West (1985) 159 CLR at 584-585 per Mason J. In that case Brennan J stated the following generally expressed principles (at 628 to 629):
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 enquiries 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. …
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. …
(citations omitted)
21 Given the terms of the 6 December 2019 letter, there would appear to be nothing (or at least, very little) of a confidential nature. The source of concern which occasioned the determination of the delegate seems to have been a newspaper article. But perhaps there was something confidential in the "allegation from a member of the public…". Whether that was so can presently be placed to one side. It may be assumed that at least some information could be identified and disclosed to Mr Yang, even if only what it was in the newspaper article which attracted the concern, or whatever other available material invited the scrutiny of the Department. But nothing was disclosed to Mr Yang. And it would be difficult to envisage circumstances in which any prior disclosure of the fact that consideration was being given to make a "determination" under s 26(3) may prejudice that decision-making task. A decision to cancel a visa may, for example, occasion the visa holder to flee and avoid being taken into detention or occasion a destruction of documents. But such cases are ones in which the visa holder retains within their own power the ability to prejudice or place at risk the decision-making process. Such is not the present case. The completion of the citizenship process remains within the control of the Respondent. And Mr Yang seems to be a person of some prominence, given the suggestion that he is the "operator" of Marine Parade Holdings. The Respondent did not even attempt to adduce evidence that Mr Yang would himself seek to thwart the decision-making process if he was given advance notice of the consideration being given to the making of a "determination". If anything, he was seeking the completion of the decision-making process. Any such risk to the administration of the Act was left to some uncertain process of adverse inferences.
22 The content of the opportunity which should have been extended to Mr Yang in the circumstances of the present case was not only advance notice that consideration was being given to the making of a "determination" under s 26(3), but also the disclosure of all such material as was sought to be relied upon: Mobil Oil (1963) 113 CLR at 504 per Kitto J. That did not happen. Mr Yang was left to speculate as to why his approval for citizenship had not progressed through to him making a pledge of commitment. That speculation included whether the article in The Weekend Australian newspaper in March 2019 had impacted the decision-making process.
23 It is concluded that the rules of procedural fairness applied to the decision made in December 2019 in respect to Mr Yang and that those rules were breached by reason of the non-disclosure to him of any information in advance of the decision being made. If the rules applied and prior notice was required, the Minister accepted that Mr Yang was not given any notice prior to receiving notification of the decision having been made.
24 In reaching this conclusion it is unnecessary to make further findings as to whether the circumstances of Mr Yang's application and the decision made in December 2019 also involved those within the Department providing misleading information. Those circumstances included an inquiry made on Mr Yang's behalf by the Honourable Tania Pliberseck MP provoking a response from the Department in October 2019 that Mr Yang's application "remains under consideration".