Editors --- "Procedural Fairness - Notification of Adverse Information - Case Note" [2006] AdminRw 13; (2006) 57 Admin Review 82

• Procedural fairness—notification of adverse information

---

Procedural fairness—notification of adverse information

In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs^[1] the High Court examined the content of a statutory procedural fairness requirement in the Migration Act 1958 (Cth) and whether breach of this requirement led to invalidity of the decision.

The case concerned two family members who sought protection visas. Pursuant to s 424A of the Act, the Refugee Review Tribunal ‘must’ give visa applicants ‘particulars of any information the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review’. Section 425 obliged the Tribunal to ‘invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review’.

During the course of a s 425 hearing, the Tribunal asked the first appellant’s daughter about certain facts without the first appellant being present. The daughter’s evidence was potentially adverse to the appellant’s visa application case. Although the Tribunal did not tell the appellant what the daughter said, it invited the appellant to respond to the three adverse evidentiary matters raised by the daughter. The appellant responded to each matter. The Tribunal then ended the hearing, stating it would write to the appellant about other evidence given by the daughter. This did not happen.

On the question of what s 424A of the Act requires, McHugh J, with whom Kirby and Hayne JJ agreed, held that the section, along with the Migration Regulations (Cth), evinced a legislative intention for the particulars to be given in writing: ‘Section 424A(2)(b) refers to a method for “giving documents” to the person and, hence, contemplates that the information will be in writing’.^[2] Gleeson CJ dissented on this point:

Presumably, where there is no unfairness involved, the Tribunal could invite comment, orally, at the hearing … Provided the invitation is given fairly and clearly, the requirement of writing appears superfluous, especially in cases where fairness does not require an adjournment of the hearing.^[3]

McHugh, Kirby and Hayne JJ all held that the provisions in Part 7 of Division 4 of the Act, which includes ss 424A and 425, were not sequential in operation. Consistent with the inquisitorial nature of the Tribunal and the wording of the Act, their Honours stated:

the Division does not necessarily compel a sequential process, so that once the s 425 procedure has commenced or is in progress, s 424A no longer has any role to play. The obligation to deal fairly with applications for review must continue throughout the Tribunal’s review … Because that is so, the Division should be interpreted so as to require the Tribunal to give the applicant the opportunity to comment on adverse material obtained at a hearing before the Tribunal.^[4]

Gummow J dissented on this point, saying the Act’s wording and history indicate ‘the sequential chain which is provided through Div 4’.^[5] For Gummow J, therefore, s 424A ‘operates at a time before and may operate to qualify the discharge by the [Tribunal] of its obligations under s 425(1)’.^[6]

Because the Tribunal did not present the particulars of the daughter’s evidence in writing and was required to do so (Gleeson CJ dissented on this) and this requirement (s 424A) continued even after the beginning of a s 425 hearing (Gummow J dissented on this), a majority held that the Tribunal had breached s 424A.

In view of the importance of the procedural fairness requirements and the mandatory nature of s 424A (the Tribunal ‘must’ give particulars of the information), which could be contrasted with other discretionary provisions in the Division, the three majority judges held that a breach of s 424A went to jurisdiction and therefore invalidated the Tribunal’s decision.

---

^[1] [2005] HCA 24.

^[2] Ibid [67].

^[3] Ibid [20].

^[4] Ibid [60] (McHugh J).

^[5] Ibid [124].

^[6] Ibid.