(4.2) JR OF LAW MAKING - PROCEDURAL GROUNDS OF REVIEW (Hearing Rule)

Question 1

A person who may be adversely affected by a decision should be given

Answer 1

an adequate opportunity to be heard prior to the decision being made (Kioa, VEAL, SZBEL).

Question 2

The hearing rule is

Answer 2

highly flexible and ‘chameleon-like’ (Kioa)

Question 3

What is required to satisfy the hearing rule ‘depends on

Answer 3

the circumstances of the case, including the nature of the inquiry, the subject matter, and the rules under which the decision maker is acting’ (Haoucher)

Question 4

Breach of hearing rule is

Answer 4

a jurisdictional error (Aala) even if it’s a trivial breach!

Question 5

If breach of hearing rule is only trivial, what may courts do?

Answer 5

It’s always going to be a jurisdictional error, but court may exercise discretion not to grant a remedy where it’s satisfied that the breach of PF was so trivial it didn’t affect the ultimate outcome (Aala)

Question 6

At a basic level what does the DM need to disclose to the affected person?

Answer 6

the case which is made against them (Kanda) as well as the particular acts, matters and things alleged as the foundation of the charge (Johnson)

+ any changes to the procedural context where an opp to present evidence/make subs is routinely afforded (SZMTA)

[aka basically ensuring there’s no practical injustice]

Question 7

Does hearing rule require an oral hearing?

Answer 7

No - just requires you have an opp to be heard (French J in Chen)

Question 8

DM must ensure applicant knows

Answer 8

the nature and purpose of the inquiry, the issues to be considered in the inquiry and adverse information that may be taken into account (SZSSJ)

Question 9

Ultimately what is person required to know in terms of disclosure of the DM process to satisfy the hearing rule?

Answer 9

identity of DM, knowledge of what is required in submissions and ultimate criteria by which decision is being made (SZSSJ)

(but don’t need to know all aspects of process (SZSSJ – Dept of Imm did not disclose full report about data breach/process used to assess implications of breach, but it had done enough)

Question 10

DM must disclose any adverse material personal to applicant that is

Answer 10

‘credible, relevant and potentially significant’ (Kioa)

Can’t leave individual in the dark as to risk of an adverse finding! (Mahon)

Question 11

In complying with the hearing rule and the Minister finds adverse info against applicant but ultimately decides not to use it, do they still need to disclose? (+ VEAL example)

Answer 11

YES if the material is ‘credible, relevant and potentially significant’ (Kioa)

Eg VEAL – refusal of visa – confidential dob in letter of allegations provided to RRT – RRT said it did not have regard to material but still rejected VEAL

Question 12

What is an exception to requiring disclosure of adverse info to applicant to satisfy hearing rule?

Answer 12

frustrating statutory purpose: adverse info shouldn’t be disclosed if doing so would frustrate the statutory purpose or operation of the relevant Act under which the decision is made (Kioa)

Question 13

The applicant must be made aware of information on which

Answer 13

the decision is to be based and any critical issues (issues in doubt), such that applicant is given opportunity to respond/add substance to these, although this does not necessitate a ‘running commentary’ nor the stating of the obvious (SZBEL)

Question 14

Is disclosure of adverse info required in an inquisitorial hearing?

Answer 14

No - adversarial only

Question 15

What’s the exception to the requirement to disclose nature of critical issues to applicant?

Answer 15

National security exception

The content of the PF can be reduced to ‘nothingness’ where there is a threat to national security (aka balance in public interest) (Leghaei)

– about balancing public interest in national security with public interest in administration of justice (Leghaei)

Question 16

What happened in Leghai (re exception to the requirement to disclose nature of critical issues to applicant)

Answer 16

– Leghaei was purported to be a threat to national security by ASIO so visa cancelled by Minister
- Here, not even a summary of the case could be disclosed

Question 17

Where there’s been a delay, what will amount to breach of PF?

Answer 17

=Where the delay suggests a real and substantial risk that the DM’s ability to make the decision is diminished, PF has been denied (NAIS)

Question 18

Is the DM required to hear all the evidence?

Answer 18

o Ordinary DM - depends on circumstances of case + nature of statutory power (White v Ryde)
o Political DM: GG can delegate (FAI v Winneke)

BUT DM must be fully informed of the evidence/submissions of applicant entitled to be heard (White v Ryde)

Question 19

Is there an absolute right to cross-examine witnesses / determine order of witnesses?

Answer 19

no absolute right to cross-examine witnesses (O’Rourke) nor dictate when/order of witnesses called in inquisitorial hearing (Bond No 2) –> these are matters for the tribunal

Question 20

Does confidential info have to be disclosed to the applicnat?

Answer 20

Not necessarily, confidential info can’t result in exclusion of PF, but still can accommodate it eg it’s sufficient to disclose substance of the material w/o providing copy or revealing identity of the author/informer (VEAL)

Question 21

Failure to engage with an applicant’s clearly articulated argument substantiated by facts is

Answer 21

a breach of PF (Dranichnikov)

Question 22

Fraudulent advice given to applicants (by a third party) will

Answer 22

be enough to result in a finding of a breach of PF (SZFDE)

Guy held himself as a solicitor and migration agent – advised not to appeal to RRT but to request Minister substitute more favourable decision

Question 23

Is bad or negligent advice enough to result in a breach of PF by way of the hearing rule?

Answer 23

NO

Must affect operation of the legislative scheme and must be actual fraud (DUA 16 and CHK16)

Question 24

What happened in DUA 16 and CHK 16:

Answer 24

Migration agent for 2 asylum seekers used a form that she had lodged for another party – CHK16 had the correct name but all personal information related to another party,

DUA 16 correct person info but a number of incorrect matters – not fraud]

Question 25

Does hearing rule entail a right to reasons?

Answer 25

No COMMON LAW right to reasons (Public Service Board of NSW v Osmond)

Question 26

Facts in SZBEL (2006) HCA

Answer 26

refugee application, essentially applicant only focused on on one issue, not realising (and not being made aware) that RRT considered two other unrelated one determinative

Question 27

Outcome in SZBEL (2006) HCA

Answer 27

denial of PF!!

The Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about two of the three determinative issues arising in relation to the decision under review

Question 28

Facts in Application of VEAL of 2002 (2005) HCA

Answer 28

• refusal of visa application –> confidential DOB in letter of allegations provided to RRT - RRT said it didn’t have regard to this info but still rejected VEAL’s application

(RRT had argued that bc letter had been provided in confidence to the Department and Dept considered it in public interest not to disclose letter)

Question 29

Outcome in Application of VEAL of 2002 (2005) HCA

Answer 29

Denial of PF by failure to disclose that it had received a DOB in a letter

Whilst it was correct not to disclose contents of letter/author to applicant, could still have disclosed substance of allegations made in letter and given VEAL opp to respond

Question 30

Facts in Leghaei v Director-General of Security (2007) ALR

Answer 30

ASIO director (the DM) had to make good faith assessment about what must be revealed to Leghai so Leghaei could make his response

• Leghaei was subject to adverse national security assessment by ASIO, in consequence of which he was denied permanent residency and his visa was cancelled – he argued the assessment was invalid because the ASIO officers who interviewed him did not put any grounds or issues to him

Question 31

Outcome in Leghaei v Director-General of Security (2007) ALR - confidential info (outlier case!!)

Answer 31

Here, no denial of PF, still have a right to be heard, but PF obligations became nothing, –> here all required to discharge PF was evidence of the fact that the Director-General had given genuine consideration to that question and had decided against disclosure in the interests of national security

Question 32

Facts in NAIS (2005) HCA

Answer 32

• Four-and-a-half-year delay until they could get decision – but testimony of witness was critical
• 9 year old child – testimony about violent home invasion that harmed her parents – the child didn’t show much emotion for a child seeing such things – 4 years after it happened and then testimony

Question 33

Outcome in NAIS (2005) HCA

Answer 33

Whilst delay rarely will constitute denial of PF, here, was a denial

Applicants had to show that the Tribunal by its unreasonable delay, created a real and substantial risk that its own capacity for competent evaluation was diminished, it is not fair that the appellants should bear that risk.

Question 34

Facts in O’Rourke v Miller (1985) HCA

Answer 34

• police officer, passed exam, goes celebrating, using badge to get access to the store, kept trying to get girls to go for a drink with him. [He concedes first part but wants to cross-examine the girls]

Question 35

Outcome in O’Rourke v Miller (1985) HCA

Answer 35

• HCA held procedural fairness did not, in the circumstances of the case, require that O’Rourke have opportunity to cross-examine the witnesses because of the nature of the decision, the circs and the need for the examination to occur

Question 36

Facts in Dranichnikov (2003)

Answer 36

• D sought protection visa – he was a business man- tried to reform laws to stop crime – was stabbed – feared physical harm upon his return
• Tribunal rejected claim that ‘businessmen’ are at risk of persecution in Russia.

Question 37

Outcome in Dranichnikov (2003)

Answer 37

HCA majority held that procedural fairness was denied when the Tribunal failed to respond to ‘substantial, clearly articulated argument relying upon established facts’

Question 38

Facts in SZFDE (2007) HCA - fraudulent actions of 3rd party

Answer 38

• Wife, husband and kids from Lebanon – couldn’t return because of things wife had published about women in Islam – sought protection visas
• Mr Hussein pretended to the their lawyer, but certification was cancelled, took their $ and told them not to go to Tribunal (bc of lack of evidence Tribunal held they didn’t have well-founded fear of persecution and confirmed decision not to grant visas)

Question 39

Outcome in SZFDE (2007) HCA - fraudulent actions of 3rd party

Answer 39

HCA held that the fraudulent conduct of a visa applicant’s representative stultified the operation of ‘critically important natural justice provisions’ for merits review of migration decisions in the Migration Act.

Question 40

To use argument in Dranichnikov (2003) that there was a failure to respond to arguments by the DM giving rise to denial of PF under the hearing rule –> you have to say that:

Answer 40

the argument has been completely and utterly overlooked

Question 41

How was the fraudulent actions of Mr Hussein (3rd party) viewed in their impact on the Tribunal in assessing whether family had well-founded fear of persecution in SZFDE (2007)?

Answer 41

determined there was fraud which was perpetrated “on” the Tribunal, as well as upon the appellants.

That meant that, in law, the jurisdiction of the Tribunal had not been exercised and that mandamus and certiorari were appropriately ordered by the Federal Magistrates Court.