FEDERAL COURT OF AUSTRALIA

WZARB v Minister for Immigration and Citizenship [2013] FCA 523

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders made by the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia) on 15 February 2013 are set aside.

3.    In lieu thereof, it is declared that the recommendation of the second respondent of 7 October 2011 that the appellant does not meet the criterion for a protection visa pursuant to the Migration Act 1958 (Cth) in that he is not a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to Refugees was not made according to law in that it entailed a denial of a procedural fairness to the appellant.

4.    The first respondent is to pay the appellant’s costs of and incidental to the appeal and in the court below to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The appellant is, for the purposes of the Migration Act 1958 (Cth) (the Act), an “offshore entry person” within the meaning of that term as defined by s 5 of that Act. That is because, when he arrived at Christmas Island on 13 May 2010, he held no visa and was thus an “unlawful non-citizen” and, further, because Christmas Island was then an “excised offshore place”, each term also as defined by s 5. The effect of s 46A(1) of the Act is that such a person may not, in Australia, make a valid application for a protection visa unless, under s 46A(2), the Minister for Immigration and Citizenship (Minister) determines that it is in the public interest that this prohibition should not apply to him. Upon arrival and as an unlawful non-citizen, the appellant was placed in immigration detention.

2    On 15 October 2010, the appellant requested that the Department of Immigration and Citizenship (Department) make a refugee status assessment in respect of him. Though, by s 46A(7), the Minister has no duty to consider whether to exercise the power granted to him by s 46A(2), the making of such an assessment is an administrative step which, if it results in a conclusion that the applicant for the assessment is a person to whom Australia owes protection obligations under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to Refugees (collectively, the Refugee Convention), may lead to the making of a favourable decision by the Minister under s 46A(2). Further, it may also lead to the granting by the Minister, in the exercise of the power conferred on him by s 195A of the Act, of a visa.

3    Administrative provision is also made, on request by an applicant, for the review on the merits by an independent person of adverse refugee status assessment decisions. If successful, that review yields a recommendation to the Minister that an applicant be accepted as a person to whom Australia owes protection obligations under the Refugee Convention. That, in turn, can lead to a favourable exercise of the discretions vested in the Minister by s 46A and s 195A of the Act.

4    On 17 November 2010, an officer of the Department assessed that the appellant was not a person to whom Australia owed protection obligations, because he was not a refugee in terms of the Refugee Convention. On 20 December 2010, the appellant sought the independent merits review of this adverse status assessment. That review was conducted by the second respondent (hereafter, the reviewer) to this appeal. As might be expected, the reviewer took no active role in the appeal.

5    On 7 October 2011, the reviewer concluded his review. He recommended that the appellant not be recognised as a person to whom Australia had protection obligations.

6    The appellant then sought, in what was then known as the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia) (Federal Magistrates Court), a declaration that this review was not made according to law and a related injunction restraining the Minister from relying upon it. On 15 February 2013, that court (Emmett FM, as her Honour then was) dismissed that application with costs: WZARB v Minister for Immigration [2013] FMCA 93. It is from that judgment that the appellant now appeals to this Court. In the event that the appeal is successful, the appellant now seeks only declaratory, not additionally injunctive relief.

7    The ground of appeal is that the court below erroneously concluded that the appellant had not been denied procedural fairness by the reviewer in the conduct of the review. That denial was said to have been constituted by one or more of the following:

(a)    the existence in the circumstances of an obligation on the part of the reviewer to see the appellant’s identity card, which was said to be central to his claim that he was a refugee within the meaning of the Refugee Convention;

(b)    a failure by the reviewer to follow what was alleged to have been a representation by him to the appellant in the course of the hearing that he would view that card following that hearing and resume the hearing if he had any concerns about the card; and

(c)    a consequence of practical injustice by the reviewer’s failure to obtain or to look at the identity card in departure from that representation.

8    It is settled that the steps taken by administrative provision, which include the conduct of the independent review, to inform consideration of whether the Minister will exercise the powers conferred on him by s 46A and s 195A of the Act are attended with procedural fairness obligations: Plaintiff M61/2010 v The Commonwealth (2010) 243 CLR 319.

9    Upon an analysis of the course of proceedings at the hearing conducted by the reviewer, the learned federal magistrate concluded (para 63) that the reviewer had assumed no obligation to look at the appellant’s identity card. Her Honour further concluded (para 64) that there was nothing about the proceedings to suggest that they were incomplete or that a further hearing would be conducted before any recommendation was made by the reviewer. If, contrary to her conclusion that there had been no representation that the identity card would be looked at with a further hearing being conducted if necessary, her Honour concluded (para 66) that no procedural unfairness resulted from this because the organisational name on that card was different to others which the appellant had given as the name of the organisation for which he said he had worked in Afghanistan. The ultimate findings which the reviewer made as to an absence of credibility in the basis of the appellant’s claim for refugee status being, in her Honour’s view, reasonably open to the reviewer, she dismissed the application.

10    In this case, the Federal Magistrates Court enjoyed no special advantage over this Court in relation to findings of fact. In that court, as on the appeal to this Court, what occurred both before and during the interview conducted by the reviewer in relation to the appellant’s application for refugee status assessment and review was a given. It is for this Court to reach its own conclusions as to the effect of what occurred.

11    Shortly after his arrival, the appellant was interviewed at Christmas Island by an officer of the Department. The interview was conducted with the assistance of an interpreter fluent in Pashto, the appellant’s native language. There has never been any suggestion that he was literate in either written or spoken English. Further, the evidence is that, though he speaks his native language fluently, he has only limited written literacy in that language (reasons of court below, para 59, referring to a finding made by the reviewer).

12    The appellant’s answers in the course of this interview and in response to questions directed to his employment history are summarised in this way on the questionnaire form by the interviewer, “2003/2009 – Employer: “Afghan Government (Human Rights Department) Freeing Prisoners Cook” – Did not work anywhere else”.

13    Later in that interview, and in response to a question directed to why he left Afghanistan, the appellant is recorded as having stated:

Because of the Talaban I fled the country because I was working for the government. … I worked discreatly for some time then Mullah [name] from Kandahar and one of the Talaban spoke to the Mullah of the mosque and asked him to give me a message to leave my job with the government and come and join us and fight for us. If you don’t comply, we won’t let you live. … Then a few days after the Mullah gave me the message I was walking to work. I turned down a road and saw a car parked at the end. I recognised them and I ran away. … Talaban is very recognisable.

[sic]

When asked at this interview as to why he did not wish to return to Afghanistan the appellant is recorded as having stated:

As I said before in my life story. If I go back their I will be made to fight for them or they will kill me.

[sic]

When asked, “What is it about you?” he responded:

Any person that works for the gov or have worked for the gov their lives are difficult. It is any person who works for the government and because I worked for the gov I either had to join them and fight for them or be killed.

[sic]

14    The appellant had the assistance of a lawyer when he was interviewed, again in Pashto, for refugee status assessment purposes on 15 October 2010. In the record of that interview he is recorded as having given the following details in respect of his employment history:

2002-2008 – Helped brother in family owned clothes shop in [place]… Afghanistan.

2008-2009 – Worked for Amnesty International at … [place] in Afghanistan. My supervisor’s name was [name].

15    Later in this interview, the appellant mentioned that he had given the originals of his driver’s licence and work ID card to his case officer (an officer of the Department). The reasons given for the initial refugee status assessment make reference to having inspected this ID card and to inferences drawn from its condition. A copy of the obverse and reverse of that card is included in the appeal book as part of the material which was before the officer who made that assessment decision. As copied, the obverse is not legible.

16    The original ID card was not tendered in evidence before the Federal Magistrates Court. Nor, as will be seen, was it part of the evidence before the reviewer. It was tendered on behalf of the appellant on the hearing of this appeal. Objection to the tender was taken by the Minister on the basis that the original was not part of the evidence either in the court below or before the reviewer. If that were the basis of the tender, I should have rejected it. It was made clear, though, that the basis of the tender was much more limited and was solely for the purpose of proving that the original did exist and that, if the appeal were successful, remitter for the purpose of allowing it to be relied upon and considered in the context of a further independent review would not be futile. On that limited basis, I admitted the original of the ID card in evidence on the appeal.

17    In a statutory declaration made on 15 October 2010, completed with the assistance of an interpreter and his legal adviser, the appellant repeated his claim that he had worked in Afghanistan for Amnesty International. The claim that the appellant had worked for Amnesty International was repeated in the submission that his legal adviser made in support of the appellant’s application for review of the adverse refugee status assessment.

18    For the purposes of his review, the reviewer interviewed the appellant at length on 13 April 2011 with the assistance of a Pashto interpreter. A transcript of that interview formed part of the evidence before the court below. The transcript records the questions asked of the appellant and statements made to him by the reviewer in English as well as an English translation of both how these questions and statements were put in Pashto to the appellant and of the appellant’s answers given in Pashto. In the transcript of the interview, the following abbreviations are used:

    PT – the reviewer

    Int – the interpreter

    AB – the appellant

The reviewer explored at length and in depth with the appellant his claimed employment and how his related fear of persecution arose and earlier statements made by him on these subjects. Given the grounds upon which the appellant seeks to challenge the judgment below, it is necessary to set out at some length excerpts from this interview.

…

PT:    Do you know the name of the organisation?

Int:    Do you know the name of the place where you worked? What was the name?

AB:    The name was known to me when I went there as [‘Huqooq-ul-Bashar’] Human Rights.

Int:     He is saying when I started working over there the name was the Human Rights.

PT:    And you don’t know any other parts of the name?

Int:    You don’t know another name?

AB:    No but I think it was also known as HELP [‘Halep’], it is also written on my card but I don’t know what that stands for.

Int:    He is saying that on my card there is also written Halep I am not sure what Halep means

PT:    How would we spell that, you know?

Int:    Ah ... might be help or something

PT:    Yeah I was wondering.

Int:    Can I get him to write it down?

PT:    yeah sure.

Int:    Can you write it here?

AB:    No, I can’t write it down but may be it would be in my card and you can see it.

Int:    He says that I do have my ID card with me and then you can check it.

PT:    It is here, is it?

Int:    Yeah

AB:    In property, yes.

Int:    Yeah it is in property.

PT:    The ID card has the name of the organisation, does it?

Int:    Is the name written in the ID card where you worked?

AB:    It should be, you can see it?

Int:    It should be.

AB:     You can check that.

Int:    You can check it.

PT:    We will check that.

Int.    We will see that.

[emphasis added]

…

PT:    Now I wanna [sic] go through each of those and give you an opportunity to respond to them because it is very important that you tell a credible story and I think that your evidence is credible.

AB:    I am giving you and opportunity and I want to go to those points and ask you and want your answers and reasons and why you think it is not correct and I am giving you time and it is very important that you satisfy me or give me reasons so those claims made them are not correct and you qualify of this thing.

PT:    Now what you said initially to the department when you were first interviewed is that you worked for an organisation called Amnesty International.

Int:    In your first interviewed you said to them that you worked with an organisation called Amnesty International.

PT:    Then you also told them, that’s the departmental officer, that you worked for the Afghan Government Human Rights Department, which is a different organisation.

Int:    After this you have said that you work with the Afghan Government Human Rights, which is separate.

AB:    So you have given two different stories, what do you say about that?

Int:    Here there are two story or two accounts, what do you about that?

AB:    In relation to this about the first name he mentioned I said in my first interview in Christmas Island and when I had spoken with my legal representative here and given interview to the case officer in all those interviews I have said that I have worked with Huqooq-ul-Bashar and I have not mentioned a second name. I am not educated and I only said that I have worked with this place and the name I mentioned was Human Rights [‘Huqooq-ul-Bashar’].

Int:    He is saying that in my first interview, with my migration agent then with my case officer, I told them that, I told all of them that I was working with the Human Rights. I never said that about the second name because a I am not educated, I don’t have any education, so I never said about the second part. I told everybody that I was working with the Human Rights.

PT:    It also says here that you told them that you worked for the organisation for 15 to 18 months.

Int:    It also says here that you have told them that you worked with them from between 15 to 18 months.

PT:    And today you have told me that you have worked with them for about 20 months.

Int:    and today you have told me that you worked with them for 20 months.

PT:    But most importantly, at your entry interview you said that you worked for the Afghan Human Rights Department from 2003 to 2009.

Int:    Most importantly you said in your first interview that you work for the Afghan Human Rights from 2003 to 2009.

AB:    It seem that there may be a mistake, I have appealed this in Christmas Island as well that I have worked with these people and twice I have received their cards and each card was issued once a year. It was my second card that and at the end of that year on the 11th month I quit my job as a result the situation that occurred and left that place. And I didn’t say from 2003 till that date, I said that over there and I said this to my case officer that this was my second card and if you work it out it adds up to that period which I worked there.

Int:    He’s saying that the thing is like you know that I said it in the first interview with Immigration and I told them about this that I told them that in each year that I worked with the organisation that I was working, they would give you one card and I was on my second card, which was almost like about, like it was 11th month – the second card that I was in and it was almost over, which this incident happened to me so I had to leave that job. I never said in any of my statements that working from 2003 to 2009 with anybody. So I never said that.

PT:    Now you just told me before that you have always said you were working for Human Rights.

Int:    You have said to me that you always told them that you worked with Human Rights [[‘Huqooq-ul-Bashar’].

AB:    Yes, this is true.

Int:    Yes that is true I was working with Human Rights.

PT:    A document given to the Department by your advisors, a Statutory Declaration signed by you.

Int:    There is a document from your legal representative and there is your signature in it.

PT:    And the Statutory Declaration is a very important document where you swear to be telling the truth.

Int:    This paper contains what you have said and you have signed it this is very important thing and here you swear that whatever you say here is true and not false.

PT:    And the document was translated to you by a Pashto speaking person.

Int:    This document was translated to you by a Pashtun interpreter who spoke Pashto.

PT:    And what that documents says that you worked for Amnesty Afghanistan.

Int:    In this paper it says that you worked for Amnesty Afghanistan.

AB:    I earlier said that may be that interpreter has made a blunder because there were a few things before as well when I would be asked and then I would say, no it wasn’t like that but like etc, or I would make a blunder and then correct myself. From the first day I have said that I have worked with [‘Huqooq-ul-Bashar’] Human Rights. This name of Human Rights is the equivalent which they refer to it. The only name under which I worked there was under the [‘Huqooq-ul-Bashar’] Human Rights. Whatever name he has put or given that I am not aware of.

Int:    He is saying that like you know this human being might make some mistakes and maybe some mistakes from the interpreter but from the beginning whenever I was interviewed all the time I told them that I was working with the Human Rights. I never said about the other name. It might be that thing that name that other people call it with that name, but from the beginning till now I was working with the human rights and didn’t say about the other names.

AB:    This name of “Human Rights” was also given by the interpreter and not me because I don’t have education and the other name mentioned I have never heard of and this was given by the interpreter so I wasn’t aware of it.

Int:    He is saying that I don’t have any education myself so I didn’t know the name or anything like that. Those names might be given by interpreter and since I don’t’ have any education I didn’t know.

…

PT:    No, I raised everything that has concerned me and the only thing in particular that is unresolved in my mind now and we’ll to see if there are any other documents that help me out. It may or may not, I don’t know but I need to have a look at it.

Female voice:    Alright, there is nothing ...

Int:    Do you guys want me to translate this?

Int:    He asked her whether there is anything else to be add in here and said this information that is with you, the country information about Afghanistan, do you want me to give you more information. He said not now and only your documentation is needed to be looked at because in his mind it is still unresolved and once I see those documentations then I will see whether I need anything further.

AB:    One thing is that I have requested some documents for this reason and I have seen some people that could not show

I have genuine documents that I requested and whether it is my ID card or license or “Tazkeera” they are all genuine and not photocopies. I have seen some people who didn’t have any documents but in six months’ time they were accepted and are in Sydney now.

Int:    He say that as far as my evidence or about my documents I have called the whole thing genuine, like the original ones, my card, my license or my identity card are originals here. I have seen some people not even have even single kind of document and in six months’ time they have been in Sydney or different places. But I have all my genuine things and it’s in property.

PT:    Well we’ve asked for them to let me have a look at them and that’s what I want to do.

Int:    Ok we’ve asked for those documents to be brought so I can see them.

PT:    If I have any query about documents and so I think what we will do is have another talk about it, we will continue hearing or we another hearing just to talk about those particular issues because your advisor and I am here and all this week and we’ll get you back if we need to talk to you about it.

Int:    Once I have seen your documents and if there was any question raised by me then your me and your advisor are here for one week and we will ask you to come again and we will ask you again only about those documents.

[emphasis added]

19    The learned federal magistrate did not, in terms, find that the reviewer had not looked at the original of the ID card although, as I read her Honour’s reasons for judgment, they are premised on this, albeit unarticulated, basis. It was, somewhat faintly it seemed to me, submitted on behalf of the Minister that there was nothing in the reviewer’s reasons which suggested that he had not looked at the original. It is true that there is not an explicit statement in those reasons that the reviewer has not looked at the original of the ID card. That absence of reference, viewed in the context of the interview, those reasons and the finding which the reviewer made as to an absence of credibility on the part of the appellant is eloquent proof that he did not look at the ID card. The absence of reference to having sighted the original is in marked contrast to the explicit reference to having sighted the original made by the officer who conducted the assessment. It was always open to the Minister, if the fact were truly controversial, to have led evidence before the Federal Magistrates Court from the reviewer that he had, in fact, looked at the original of the ID card. No such evidence was led. Instead, the case seems to have been conducted below upon the mutual assumption that the reviewer had not looked at the original of the ID card. It probably also explains why the reasons for judgment are cast on the basis of this unarticulated premise. I proceed on the basis that the reviewer did not look at the original of the ID card. There is not doubt that the reviewer never reverted to the appellant after the interview and before making his recommendation decision.

20    The principle which falls for application is not in doubt. Where a decision-maker is bound to afford natural justice in the exercise of a statutory or other power to make an administrative decision, words or conduct by that decision-maker as to the procedure which will be followed prior to the exercise of that statutory power can inform the content of the natural justice obligation in the circumstances of a particular case and, if that procedure is subsequently not observed by the decision-maker, can lead to a conclusion that an individual affected by the decision has not been afforded natural justice. This principle and the related authorities were detailed and analysed in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 (Lam). In their joint judgment in Lam (at [48]), McHugh and Gummow JJ stated:

It often has been remarked in this Court that the particular requirements of compliance with the rules of natural justice will depend upon the circumstances. Different procedures may be required, even of the same repository of power, from one situation to the next, a point made by Aickin J in Heatley v Tasmanian Racing and Gaming Commission. Further, the expectations of a particular party as to the exercise of the power in question may be relevant to the way in which the repository of the power is to exercise it in the particular case. In Attorney-General (NSW) v Quin, Brennan J observed:

“[I]f an express promise be given or a regular practice be adopted by a public authority, and the promise or practice is the source of a legitimate expectation, the repository is bound to have regard to the promise or practice in exercising the power, and it is unnecessary to enquire whether those factors give rise to a legitimate expectation. But the court must stop short of compelling fulfilment of the promise or practice unless the statute so requires or the statute permits the repository of the power to bind itself as to the manner of the future exercise of the power.”

The reference to “express promise” puts the matter too narrowly in the light of later decisions, but in other respects this statement should be accepted.

[Footnote references omitted - emphasis added]

21    Their Honour’s reference, with qualified approval, to the statement of principle enunciated by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 40 (Quin), in the passage to which I have given emphasis needs to be understood in light of their later discussion of the limitations of the use of the term “legitimate expectation” and of their approval in that regard (at [82]) of the following, further statement made by Brennan J in Quin (at 39):

So long as the notion of legitimate expectation is seen merely as indicating 'the factors and kinds of factors which are relevant to any consideration of what are the things which must be done or afforded' to accord procedural fairness to an applicant for the exercise of an administrative power, the notion can, with one important proviso, be useful. If, but only if, the power is so created that the according of natural justice conditions its exercise, the notion of legitimate expectation may usefully focus attention on the content of natural justice in a particular case; that is, on what must be done to give procedural fairness to a person whose interests might be affected by an exercise of the power. But if the according of natural justice does not condition the exercise of the power, the notion of legitimate expectation can have no role to play. If it were otherwise, the notion would become a stalking horse for excesses of judicial power.

[Footnote reference omitted]

22    In Lam (at [33]), Gleeson CJ summarised the relevant principle in this way and by reference to the decision of the Judicial Committee of the Privy Council in Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 629 (Ng Yuen Shiu):

The decision of the Privy Council stands for the proposition that, when a public authority promises that a particular procedure will be followed in making a decision, fairness may require that the public authority be held to its promise. That was the basis on which it was explained by Dawson J in Attorney-General (NSW) v Quin. Expectations created by a decision-maker may affect the practical content of the requirements of fairness in a particular case.

[Footnote references omitted - emphasis added]

23    As reproduced in the appeal book, the transcript of the interview contained some passages which were in bold type and some which were underlined. It was common ground that nothing was to be made of these markings. I have therefore omitted them from the excerpts set out above. Instead, I have given my own emphasis to particular passages which assume an importance in the conclusion which I have reached about whether, in the circumstances, the reviewer did fail to afford the appellant natural justice by not examining the original of the ID card and then reverting to the appellant in the event that that examination might form part of an adverse finding as to his credibility.

24    The appellant’s claim for assessment as a refugee was wholly dependent upon acceptance that, as a result of particular employment undertaken by him in Afghanistan, he had come to the notice of the Taliban who had, via an intermediary, ordered him to quit that employment and come and fight for them on pain of death. He had brought with him to Australia the original of an ID card which, at least purportedly, was the ID card issued to him by his employer. That ID card had been taken into the possession of the Department at the time of his being placed in immigration detention. Though consulted by the officer who made the original assessment, it was not before the reviewer at the time when the interview was conducted.

25    I have reached a different conclusion to that reached by the learned federal magistrate and thus to the submission made by the Minister as to the effect of the statements made to the appellant by the reviewer in relation to the ID card as the time of the interview. In so doing, I have been influenced by an opinion voiced by Downes J as a member of the Full Court in his dissenting judgment in NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 127 FCR 259 at 273 at [60]. His Honour there opined that procedural fairness required that undertakings given by administrators in the course of dealing with a person should be given an expansive, rather than a confined, construction. The Full Court’s judgment was reversed by the High Court on subsequent appeal: NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1. In so doing, McHugh, Gummow, Callinan and Heydon JJ explicitly observed (at [45]) that there was “force” in the opinion voiced by Downes J in the Full Court.

26    There is no doubt that the reviewer was at pains in the interview to draw to the appellant’s attention what he saw as a critical fact in respect of his claim to refugee status namely, whether he had undertaken employment as claimed or even at all. The reviewer also fairly put to the appellant that he had given different accounts in earlier statement as to for whom he had been employed. He offered the appellant opportunities to comment upon and explain these differences. The appellant took advantage of these opportunities in the course of the interview. The passages to which I have given emphasis in the excerpts quoted above must be read and their ramifications measured in this context.

27    It was the appellant who drew attention to the original of his ID card as offering proof of exactly for whom he had worked. For a man who professed limited literacy in the written word even of his native language, let alone English, this card, if accepted as genuine, had a singular importance not just in giving precision to for which organisation he had been employed, but also in corroborating his claim. As the original assessor’s reasons highlight, the physical properties and condition of the card on inspection might also influence a conclusion as to whether it was genuine. The importance to the appellant’s claim of the original therefore transcended just remedying the illegibility of the photocopy which had been produced in the course of the original assessment. The responses by the reviewer which I have emphasised and, especially, those which I have additionally underlined must be seen in light of this. It was not just that the reviewer stated to the appellant that he would look at the original of the ID card. He later added that, having so done, if he had any query, he would ask the appellant and his adviser to come back for a further interview about that.

28    There are particular reasons, inherently related to the humanitarian ends to which the Refugee Convention is directed, and the role it plays under the Act in the granting of a particular class of visa, which favour an expansive rather than a narrow construction of what to make of the statements made to the appellant by the reviewer.

29    The reviewer was in no way bound to accept at face value the claim made by the appellant. As formulated from time to time before the interview which the reviewer conducted, there were differences in detail in the appellant’s accounts as to for whom he had worked in Afghanistan. An interrogative note, which was also later influential in the reviewer’s assessment as to the appellant’s lack of credibility, was also sounded by his claim that he had worked as a cook for an organisation that had only some seven employees. Yet the consequence for the appellant if the basis of his claim were indeed genuine but it was not accepted, such that he was returned to Afghanistan, was, literally, life threatening. The reviewer’s role was therefore one of singular responsibility. That role was promoted to the appellant as that of the conduct of an independent review. These two factors lent a particular gravitas to the statements which the reviewer made to the appellant at the interview as to the further course which he would follow. There was nothing in the administrative charter in respect of that role which was inconsistent with an understanding that the reviewer was entitled to call for the original of the ID card, examine it and then convene a further interview in the event that the examination caused him to doubt the appellant’s claim.

30    When the reviewer undertook to look at the original of the ID card he also obviated any need on the part of the appellant to request an adjournment of the interview so that the original could be obtained from where it was being housed by the Department. Further, as was acknowledged in the course of the interview, such an examination could conveniently be conducted during the course of the then current visit to the detention centre being undertaken by the reviewer and the appellant’s legal adviser.

31    In my view, the effect of what was said to the appellant by the reviewer was that he undertook to the appellant that he would look at the original of the ID card and revert to the appellant in the event that this disclosed anything adverse to his interests. It was not necessary for the appellant in the circumstances of this case to prove that he had expressly taken account of this undertaking and, as a result, believed that there was no need to instruct his legal advisers to ensure that the original of the ID card was put before the reviewer: Lam at [93] per McHugh and Gummow JJ, Callinan J at [145]. It is just natural to assume that, in the face of what the reviewer said to him, the appellant was entitled to believe not just that the reviewer would be as good as his word but that, if his examination of the ID card raised anything potentially adverse to his claim for refugee status, he would be given an opportunity to make a further submission on that subject before the review was concluded.

32    In the result, no examination was made and no further hearing was afforded to the appellant prior to the reviewer deciding to recommend to the Minister that the appellant was not a person to whom Australia owed protection obligations. The differing accounts as to the identity of his employer formed a basis upon which the reviewer concluded that the appellant’s claim for refugee status lacked credibility.

33    It was put on behalf of the Minister that, even if, contrary to his primary submission, the circumstances of the interview did give rise to an undertaking as described, nothing turned on the breach of that undertaking as it entailed no practical injustice to the appellant. That was because the result could have been no different. All that it would have done, so it was submitted, was to underscore an absence of credibility on the part of the appellant, given his differing accounts as to for whom he had worked. This, as already noted, was the further and alternative conclusion reached by her Honour in the court below.

34    The relevant touchstone is whether the failure to adhere to the promised course of action might have, “deprived him of the possibility of a successful outcome” on the review: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82 (Aala) at [4] per Gleeson CJ; at [80] per Gaudron and Gummow JJ (with whom Hayne J, at [172] agreed in this regard); at [122] per McHugh J; at [131] per Kirby J; and at [211] per Callinan J.

35    Sometimes, and the dissent of McHugh J in Aala offers an example of this, the application of this principle in the circumstances of a case where an adverse outcome, in any event, looks inevitable for the person complaining of a denial of natural justice, can give rise to sharp differences of opinion as to whether any practical injustice has resulted from that denial. Unlike, in Lam, (see, for example, per Callinan J at [149]), the appellant is able to demonstrate that there was material namely, the original of the ID card, which was not before the reviewer. Further, the opportunity lost by the appellant is not just the reviewer’s examination of the original of the ID card but also that of giving an explanation in respect of any adverse inference arising from that examination which the reviewer might have otherwise been disposed to draw.

36    It is tempting to concur with the conclusion of the learned federal magistrate that sighting this card must inevitably have underscored in the mind of the reviewer an absence of credibility in the claim made by the appellant. That, with respect, is a temptation to be resisted. One reason for that, as Gaudron and Gummow JJ reminded in Aala, at [81] was supplied by Megarry J in John v Rees [1970] Ch 345 at 402:

[a]s everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.

Another reason, as was submitted on behalf of the appellant, is that so to do is impermissibly to engage in a form of merits review. It is to be remembered that the appellant has also lost the opportunity to give an explanation.

37    For completeness, I should mention that, in the course of submissions, there was some debate as to whether the circumstances of this case raised a separate jurisdictional error of failing to undertake an inquiry namely, to obtain and examine the original of the ID card, in circumstances where it was incumbent on the part of the reviewer to do this, ie an error of the kind identified by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 (SZIAI). Read in isolation, the first of the particulars given in the notice of appeal as to why there had been a denial of procedural fairness to the appellant might be construed as an endeavour to raise such a case. Counsel for the appellants acknowledged that interpretation was open but disavowed reliance on such an error. Unsurprisingly, the Minister submitted that no such error was revealed. The function being undertaken by the reviewer was grounded in a pronouncement as to a public administration practice not, as was the case with the Refugee Review Tribunal in SZIAI, directly in the Act. That, in my view, is a distinction without a difference so far as any such error is concerned. The feature distinguishing this case from the kind of which SZIAI is an example is that, here, the reviewer voluntarily undertook that he would examine the original of the ID card and, further, that this undertaking was, as the further particulars given in the notice of appeal allege, related to an undertaking to offer the appellant a further interview. The natural justice breach here, entailing as it did a deprivation of an opportunity to make a submission at that interview as to why an adverse inference should not be drawn from an examination of the ID card, is, in my view, no different in kind to that disclosed in Ng Yuen Shiu.

38    For these reasons, the appeal must be allowed. Given the administrative practice followed by the Minister in cases of this kind, the granting of declaratory relief is not without utility. One might expect that the review will be conducted afresh and, given the credibility findings made to date, by a different reviewer.

39    I conclude by recording my appreciation in respect of the helpful and concise oral and written submissions made by counsel both for the appellant and the Minister in this appeal.

Associate:

Dated:    29 May 2013