TABLE OF CONTENTS
Breach of the rules of natural justice are a fertile ground of judicial review. The rules of natural justice are simple to articulate but sometimes difficult to apply in practice. The rules of natural justice are that an applicant must have every opportunity to put his or her case and that a person needs to be given notice of any adverse material to taken into account against the person. Often it is asserted that even if there is a breach of the rules of natural justice then the applicant must present material to show what he or she would have presented to the decision-maker. Whilst this may be a wise course in practice, it is not legally necessary as the Full Federal Court in Dagli v MIMIA  FCAFC 298 (19.12.03) in a joint judgement confirmed:
The correct position, in our view, was summarised by Hely J in Tuncok v MIMIA  FCA 1069. His Honour said at :
“If a breach of the rules of natural justice is established an applicant would ordinarily be entitled to relief unless the Court was satisfied that the breach could have had no bearing on the outcome: Stead v State Govt Insurance Commission (1986) 161 CLR 141 at 147; Re RRT Ex p Aala (supra) at 116-117. Accordingly, I reject the submission put by the solicitor for the Minister that this application must fail because of the failure on the part of the applicant to demonstrate by evidence that some practical unfairness accrued to him as a result of the procedures which were adopted. If the applicant was not informed of the case which he had to meet, that is sufficient to establish ‘practical injustice’ without the applicant having to prove what he would have done had he been informed of that case. Re MIMA, Ex p Lam (2003) 195 ALR 502 does not decide otherwise: NAFF of 2002 v MIMIA  FCAFC 52, at ; VAAC v MIMIA  FCAFC 74 at : Dagli v MIMIA  FCA 497 at .”
92 In Ranginui v MIMIA  FCA 1280, Weinberg J took the same approach to this issue. As his Honour noted, in Re RRT; ex p Aala (2000) 204 CLR 82, Gleeson CJ concluded that the Tribunal, having inadvertently misled the applicant as to the nature of the material before it, deprived him of an opportunity to answer, by evidence and argument, adverse inferences that might be drawn. Had he been given an opportunity to correct the misunderstanding, “a different view might have been taken as to his credibility” (emphasis added). His Honour applied Stead v State Government Insurance Commission (1986) 161 CLR 141, saying that no one could be “sure” that the Tribunal’s ultimate conclusion would have been the same. To the same effect were the judgments of Gaudron and Gummow JJ at 116-7, McHugh J at 122, and Kirby J at 130-1.
In Dagli, the Minister failed to provide reasons for decision for the cancellation of a visa on character grounds. Eventually the Minister provided reasons some 6 months later, after proceedings in the Federal Court were commenced. In this regard, the Full Federal Court said:
67 It is common sense that a statement of reasons produced long after a decision has been taken must be treated with caution. There is not the slightest suggestion, in this case, that the Minister or his advisors were influenced, in formulating the statement of reasons, by what had been said in argument before the primary judge. Nonetheless, there is great force in the adage that justice must not only be done, but seen to be done. A person whose visa has been cancelled, without reasons being provided, will inevitably feel that a statement of reasons, provided after the decision has been challenged, may have been tailored in order to render those reasons immune from review.
- 501G(1)(e) of the Migration Act provide that if a visa is cancelled on character ground the “Minister must give the person a written notice that:
(e) sets out the reasons (other than non-disclosable information) for the decision;”. On this point the Full Federal Court noted:
A statement of reasons provided 6 months later, in response to an order of the Court, is not compliance with the Minister’s statutory duty. The power to make such an order should, in our view, be sparingly invoked. When reasons are provided, long after a decision is taken, they should be treated with extreme caution.
This was an appeal from a trial judge where the decision of the High Court re-affirming the rights of judicial review. This is the Full Federal Court report of what the trial judge found:
75 As indicated earlier, his Honour identified four specific matters, adverse to the appellant, that were before the Minister, and that he had been denied the opportunity to address. They were the appellant’s trips to Turkey, his plans to marry a woman of Turkish origin, the Probation and Parole Report, and the officer’s assessment that he posed a medium to high risk of re-offending.
The Full Federal Court unanimously found for the applicant and overturned the visa cancellation decision.
On the requirement for the applicant to prove what he or she would have said in breach of the rules of natural justice, Ryan & Finkelstein JJ, in NARV v MIMIA  FCAFC 262 (24.11.03) gave an equally clear statement:
17 It is not clear whether the Minister meant by this submission that in every case where the complaint is that there has been a denial of procedural fairness it is incumbent upon the complainant to lead evidence to explain in precisely what way he has been adversely affected by a particular omission. If this is what the Minister means it should be rejected outright. There is no principle which is to this effect. Indeed, it is a submission which is contrary to well established principle. In Re RRT; ex prte AALA (2000) 204 CLR 82, 122 McHugh J said that: “once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because `[i]t is no easy task for a court … 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'”, citing Stead v State Govt Insurance Commission (1986) 161 CLR 141, 145.
18 On the other hand, there no doubt will be cases where it is not clear what, if anything, a complainant could have done with the information which had not been provided to him. Many examples come to mind. One example is where the information is of a type which is difficult to controvert. If, in such a case, a court is unable to see how the complainant has suffered “practical injustice”, then the complainant may be required to adduce evidence to explain why he has been unfairly treated. Another example may be found in the case of Re MIMA; ex p “A” (2001) 185 ALR 489, 500-501.
McHugh J said in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs  HCA 24; (2005) 215 ALR 162; (2005) 79 ALJR 1009 (18 May 2005) :
83.However, where the relevant breach is the failure to observe fair decision-making procedures, the bearing of the breach upon the ultimate decision should not itself determine whether the constitutional writs of certiorari and mandamus should be granted. If there has been a breach of the obligation to accord procedural fairness, there is jurisdictional error for the purposes of s 75(v) of the Constitution. There is no reason to rewrite the limitation ordinarily implied on the statutory power to deny jurisdictional error for “trivial” breaches of the requirements of procedural fairness.
84.If the decision of the Tribunal is invalid for want of procedural fairness, there is no reason to withhold discretionary relief. There is nothing to suggest that the conduct of the appellants warrants the refusal to exercise the discretion. There is no suggestion of delay, waiver, acquiescence or unclean hands. Whether the first appellant was in fact deprived of a relevant opportunity to deal with the adverse material received by the Tribunal from her eldest daughter should not affect the discretion to grant relief.
WAJH v MIMIA  FCA 935 (5 September 2003) concerned applications from 2 brothers from Burma who had made ‘sur place’ refugee applications. Carr J noted what happened at the hearing in relation to one of the brothers:
22 At the very end of the hearing before the Tribunal there was the following exchange between the Tribunal member and the applicant:
`TRIBUNAL: Okay. Now, what I intend to do – I do want to go away and look at your brother’s files because that will help me to see a bit more about your family situation. Do you have any trouble – do you have any problem with me doing that? — No, I don’t.
Just let me check his name is [name deleted]? — [name deleted], yeah.
Alright. I’ll have a look at that. What happens then is if I find any problem, I write to you and let you know and give you a chance to respond. Now, it usually takes me about a month to go away, look at all your material again, think about it and then make a decision.’
The brother’s case was subject of successful appeal to the Full Federal Court and was remitted back to the same RRT member. The RRT found one brother’s claim successful but not the other brother. Carr J concluded:
35 When, in its reasons in this matter, the Tribunal said that “the Applicant’s own association with that known dissident is not so direct” it was, in my view, making a finding of fact and excluding a possible basis upon which it could find that the applicant was a refugee. The applicant’s sur place claim, in broad terms, was that by association with dissident groups in Australia, he would receive adverse attention upon return to Burma. It is true that he did not specifically name Aung Aung, but information subsequently came to the Tribunal’s notice that Aung Aung was one of the persons with whom the applicant had an association.
36 It is possible that when the Tribunal came to write its reasons on the applicant’s sur place claim, it had forgotten about its undertaking to come back to the applicant if it found any problems in his case.
37 I reject the respondent’s submission that what transpired was not “a problem”. In my view, the Tribunal had obtained information that there was an association between the applicant and a well-known sur place dissident, Aung Aung. Its assessment was that the applicant’s association was “not so direct” as that of his brother. That was obviously, in my opinion, a significant factor which led to an outcome in the applicant’s case which was different to the outcome in James’s case. But the Tribunal used that information without giving the applicant an opportunity to make submissions about his association with Aung Aung.
38 There is uncontested evidence before the Court from the applicant that if he had been given the opportunity to make further submissions, he would have put before the Court evidence that his association with Aung Aung was substantially the same as that of his brother James. For example they each spent much the same amount of time with Aung Aung and alternated in providing the services of driving Aung Aung from place to place in the course of his activities.
39 I am not satisfied that that further evidence could have made no difference to the outcome of the review before the Tribunal in this matter.
40 In summary, I consider that the Tribunal, most probably by inadvertence, denied the applicant procedural fairness in what might be regarded as two different ways but which had a common manifestation. It did not honour the reasonable expectation which it had raised in the applicant’s mind which, if honoured, would have resulted in further submissions of the type to which I have referred above. Furthermore, it made an assessment adverse to the applicant on the basis of evidence obtained after the hearing before it, again without giving the applicant an opportunity to comment upon that evidence and to put evidence and submissions in response.
WACO v MIMIA  FCAFC 171 (15 August 2003) the Full Federal Court found that the RRT has breached the rules of natural justice by failing to warn an applicant that letters he had produced were considered by the MRT to be forgeries. The Full Court concluded:
53 In the present case and in Meadows the question whether the letters were genuine did not directly depend upon the evidence of the appellant. However, it can be said that a finding that the letters were forgeries could turn upon the credit of the appellant in so far as the finding is that the letters have been concocted by the appellant to advance his case. But if this is the case fairness would require that before a finding of forgery is made the person so accused be given the opportunity of answering it. A finding of forgery, just like a finding of fraud is not one that should lightly be made. Both involve serious allegations. Forgery, indeed, is a criminal offence.
54 Where the finding of fact made does not turn upon the credibility of the appellant and where there is nothing on the face of the documents themselves to alert the decision maker that they are forgeries it is likewise inherently unfair that the decision maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it.
55 Nothing in our mind turns here upon the fact that the oral hearing had been concluded before the letters were procured and forwarded to the Tribunal. The Tribunal could easily have relisted the matter and have arranged for the appellant to be apprised of its doubts as to the authenticity of the letters and be given the opportunity to comment upon those doubts and call, if possible, evidence to the contrary