Procedural Fairness PDF

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Procedural fairness...

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Procedural Fairness These are breaches of legal standards that result in jurisdictional error 1. Procedural fairness a. A breach of procedural fairness amounts to a jurisdictional error: Aala b. Two parts: The Hearing Rule and the Rule Against Bias c. Both appear in ADJR S 5(1)(a) d. Procedural fairness is presumed in exercising a statutory power unless it is clearly displaced by the legislation- SZSSJ at [75] by the HCA

Hearing Rule The hearing rule is developed to require that a hearing be given before deciding, affecting a person’s rights and interests. Annetts v McCann: it is settled if a statue confers power to destroy or prejudice a person's rights or interests, principles of natural justice regulate the exercise of that power ….. And can only be excluded by plain words of necessary intendment at 598.  personal reputation is an interest which should not be damaged by an official finding after statutory inquiry unless the person has had a full and fair opportunity to show why the finding should not made Commissioner of Police v Tanos: an intention to exclude cannot be assumed from indirect inferences, uncertain inferences or equivocal considerations Why do we have this rule?

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Increases the chance that decision-makers will receive all the relevant information by enabling affected persons to hear

John v Ree [1970] Ch 345 at 402 Megarry J Megarry J’s statement at 402 in Ree basically comes down to the notion that it is human nature, that if a decision has been made against them, they are more likely to accept it if they had been afforded the opportunity to respond and influence the decision It enhances human dignity and self-respect

When is a hearing required ?  Mason J in Kioa: an administrative decision which affects an individual's rights and interests will attract a common law duty to accord procedural fairness  Two obvious limitations: 1. As a common law duty, it is subject to the clear manifestation of a contrary statutory intention – Kioa per Brennan J i. Annett v McCann: plain words of necessary intendment are required to exclude procedural fairness obligations

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Plaintiff S157: courts will not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such intention is clearly manifested by unmistakable and unambiguous language. 2. The duty arises only if the individual's rights, interests are affected in a direct and immediate way i. Brennan J in Kioa: if relevant considerations relate to the individual ii. Mason J; the imposition of a rate or a general charge for service is a general policy decision, and not feasible for all people to be heard  

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Oral hearings only required where credit is at stake o Cains v Jenkins : no absolute right to legal representation The hearing need not be in person in all circumstances, need not be conducted by the decision-maker Sometimes a failure to respond to a substantial argument may amount to a breach of the hearing rule of procedural fairness- Dranichnikov, SZJSS 1. Is there an implied duty to show procedural fairness?- Kioa 2. Has the legislature clearly excluded this duty with unmistakable and unambiguous language- Saeed 3. What is the content of the duty? In most circumstances:      

adequate notice that an adverse decision may be made disclosure of prejudicial allegations and sufficient details to enable a meaningful hearing on the critical issues arising for decisions The opportunity to make relevant submissions Adduce relevant evidence Allowance of sufficient time to prepare for the hearing. The content of the obligation is determined in light of the circumstances – Brennan J in Kioa

Cases Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 •

These were four cases heard together in which the plaintiffs attempted to use M61 as authority for the proposition that the Minister was obliged to consider using a personal statutory discretion.

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Unsuccessful b/c each had their case attended by the Minister and had at least one merits review

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The guidelines used by the subordinates, to indicate which cases he wanted brought to this attention with regard to the exercise of his personal discretionary powers under the statue was considered entirely proper

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No natural justice was owed since the Act excluded it by necessary intendment

Main cases

Kioa v West (1985) 159 CLR 550

*deportation Facts •

Jason Kioa and his wife were Tongan citizens who were each granted a temporary entry permit (TEP) to enter Australia. After the expiry of his permit, Mr. Kioa applied for an extension on the pretext of taking a holiday in Australia.

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Before the application was considered fully, he changed his address and took employment in Victoria. He alleged that he did so because members of his family in Tonga, who had suffered loss in Cyclone Isaac, advised him to remain in Australia earning money that he could remit for their assistance.

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During that time, Mr. and Mrs. Kioa's daughter Elvina was born and thus was an Australian citizen. Mr. Kioa was eventually apprehended and was placed temporarily in custody as an illegal immigrant.

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His application for an extension of his temporary entry permit was formally refused and he was required to make arrangements to leave Australia with his family. When he did not, it was recommended to the Minister's delegate by one of his officers that he should make orders for the deportation of Mr. and Mrs. Kioa and he did so.

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This went to the HCA from the full court who reviewed the decision made the Migration Act

Reasons for rejecting 

The delegate made the decision and reasoned that o Kioa’s claim that he stayed in Australia was due to the cyclone but the cyclone occurred 3-month prior his TEP expired o If he was genuine in seeking a legitimate extension in Dec 1981, it would have appeared likely that he might have sought a decision on his application rather than change his address w/o apparently notifying the Department . When his wife’s TEP expired around the time of the Cyclone, there was no attempt to lodge a formal application to regularise their statue o Also Kioa’s alleged concern for other Tongan illegal immigrants in Australia and his active involvement with other people who are seeking to circumvent Australia’s immigration law is concerning

Findings 

Mason J: where the reasons a decision are are personal to the applicant, there is a greater content to the obligation to provide procedural fairness- common law implication approach subject to manifestation of contrary legislative intent o

It is a fundamental rule of the common law doctrine of natural justice that : when an order is to be made which will deprive a person of some rights or interest of a 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 is understood, by personal liberty, status, preservation of livelihood and reputation, and proprietary rights and interests

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If a decision maker intends to reject the application by reference to some consideration personal to the applicant on the basis of info from another

source which has not been dealt with by the applicant in his application, there may be a case for saying that procedural fairness requires the opportunity to respond. o Deportation order quashed 

Brennan J: it is a matter of construction, and that it is possible that there is never a condition on some powers that they be exercised according to natural justice. o Natural justice requires the decision-maker to invite comment on credible, relevant and significant information adverse to him ( VEAL) o The hearing must be meaningful hearing o o

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It is not sufficient for the repository of power to shut info of that kind and to reach a decision without it Info like that creates a real risk of prejudice and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the info.

Procedural fairness almost always applies: Annetts v McCann

Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 Facts 

The appellant is a citizen of Pakistan. She applied for a skilled independent visa. A visa of this kind can only be granted if the visa applicant is outside Aus when the visa is granted. She was required to have been employed in a skilled occupation for at least 12 months in the period of 24 months ending immediately before the day her application was made. She provided documents that she had been employed as a cook from March 2006 until Nove 2007 at a restaurant  Aus immigration in Paki investigated the appellants claims and found no employee records were kept on the premises of the restaurant. They were advised no woman had ever worked in the kitchen, on the basis of that info, the Minister's delegate advised the appellant that she considered the evidence the appellant had given to have been false and misleading  Did not satisfy a criterion and so application was refused  The Minister has the power to grant a visa, and requires to consider a valid application for visa, that obligation continues until their visa is either granted or refused. If after considering a valid application, the Minister may grant or refuse  There are provisions to which the applicant may be given an opportunity to comment on information provided Findings 

The implication of the principles of natural justice in a statue is arrived at by a process of construction  So a decision arrived without observing the principles of natural justice is inefficacious and so invalid  the terms in s57(3) plainly excludes offshore visa from the operation of s 57 which allows the Minister to give particulars of the 'relevant info' to applicant an the current applicant is an offshore applicant

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The implication of natural justice hearing rule with respect to offshore visa applicants was maintained. The Minister was obliged to provide the appellant with an opportunity to answer the adverse material. The fact that the matter dealt with by the code applied to only onshore rather than offshore, visa applicants was irrelevant the Court framed this in terms of the principal of legality, which holds that 'fundamental rights and common law principles may not be abrogated unless the intention to do so is manifested with something crystal clear'.- Coco v The Queen

Applicant VEAL of 2002 v MIMIA (2005) 225 CLR 88[adverse information] *what procedural fairness requires where a decision-maker receives confidential adverse information about an applicant, should they inform the applicant 

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Looked at the requirement to reveal credible, relevant and significant information  Except in the Migration Act where the Parliament stated all common law principles of natural justice were excluded Generally, notice must be written, sufficiency of particularity depends and higher levels of details required where more is at stake The nature of the allegation meant that it was certainly significant, it was relevant b/c it went directly to the test for refugee status. It was credible b/c the witness claimed first hand knowledge. Mr VEAL needed a chance to respond The tribunal here tried to set the letter aside and pretend that it didn’t exist

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The appellant and his partner applied for protection visas, which was later refused by a delegate They sought review by the RRT of the refusal Before the RRT had completed its review, the Department of Immigration and Multicultural and Indigenous Affairs received a letter about the applicant, the letter was unsolicited but not anonymous The letter had allegations against the appellant  The appellant had been accused of killing a person prominent in the political affairs of the appellant's country of origin  The appellant was a supporter of and working for the government of Eritrea  The author concluded the letter by advising the department to keep this info secret This was sent to the Tribunal The Tribunal did not tell the appellant about the letter, nor did the Tribunal ask about the substance of the allegations The Refugee Review Tribunal received a highly prejudicial 'dob in' letter but was unable to test its contents as its author had requested it be kept confidenial. The tribunal decided not to disclose the letter on the basis that, because the identity of its author could not be disclosed, it did not give the letter any weight in reaching its decision. The tribunal expressly disavowed any reliance

Findings

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Brennan J in Kioa: what is to be done when a decision-maker has info available hat is adverse to the interests of the person who will be affected by an admin decision.  Where no problem of confidentiality arises an opportunity should be given to deal with adverse info that is credible, relevant and significant to the decision to be made  Information of that kind creates a real risk or prejudice, albeit subconcious, and it is unfair to deny a person whose interest are likely to be affected by the decision an opportunity to deal with the information  Credible relevant and significant is to be understood as referring to info that cannot be dismissed from further consideration by the decision-maker before making the decision  the fact that the tribunal gave no weight in reaching its decision to the letter or its content, does not demonstrate that there was no obligation to reveal the info to the appellant and to give him an opportunity to respond to it before the tribunal completed the review.  The letter had contained allegations which were clearly relevant to the veracity of the applicant's claim for asylum and could not be dismissed as completely lacking in credibility  Fairness required that the substance of the allegation be revealed, but did not mean applicant was entitled to know the identity of his accuser given the public interest in allowing tribunal to access information provided in confidence...