Express law No. 32

14 December 2005

Procedural fairness, secret information, disavowals of
reliance by decision-makers and public interest immunity

One of the most significant and unresolved
issues in administrative law is whether, and to what extent,
a decision-maker must afford procedural fairness in respect
of information which is potentially adverse, but is given
no weight by the decision-maker in reaching the decision.

The High Court has recently revisited
this issue in Applicant VEAL of 2002 v Minister for
Immigration and Multicultural and Indigenous Affairs [2005]
HCA 72 (6 December 2005).

The facts

Applicant VEAL of 2002 (the appellant) and his partner
were refused protection visas by the Department of Immigration
and Multicultural and Indigenous Affairs (DIMIA). They
each sought review of the refusal by the Refugee Review
Tribunal (RRT).

After the RRT's review had commenced, but before
it had made a decision, the RRT received (via DIMIA) an
unsolicited letter containing allegations against the appellant.
The letter contained the author's name and address
but asked that the information in the letter be kept 'secret'.
The letter contained allegations against the appellant
that bore upon whether he had a well-founded fear of persecution
for a Convention reason.

During the review, the RRT did not inform the appellant
that it had the letter, it did not inform the appellant
of the allegations made in the letter, nor did it ask the
appellant about the substance of those allegations.

The RRT affirmed DIMIA's decision to refuse the
protection visas. At the end of the RRT's reasons
for decision, the RRT stated that it gave 'no weight' to
the letter because it could not test the claims made in
the letter. The RRT further stated that it decided the
matter solely for reasons which did not take into account
the information contained in the letter.

The decision

The High Court (Gleeson CJ, Gummow, Kirby, Hayne and Heydon
JJ) delivered a joint judgment in this matter, holding
that, before reaching its decision, the RRT should have
informed the appellant of the substance of the allegations
made in the letter and asked him to respond to those allegations.

The obligation to afford procedural fairness

Procedural fairness is directed to the
obligation to give a fair hearing

The High Court confirmed that principles of procedural
fairness focus on the processes by which a decision will
be reached and not the decision that is reached. Principles
of procedural fairness govern what a decision-maker must
do in the course of deciding how their power is to be exercised.

Before reaching a decision, a decision-maker
must determine whether information received is credible,
relevant and significant. That determination will affect
whether procedural fairness must be afforded.

The High Court adopted and clarified Brennan J's
statement in Kioa v West (1985) 159 CLR 550 that,
in an ordinary case, an opportunity should be given to
deal with adverse information that is 'credible,
relevant and significant' to the decision to be made.

The High Court held that a decision-maker must determine
whether information received is 'credible, relevant
and significant' to the decision before that decision
is made. That determination will affect whether a decision-maker
must give a person an opportunity to deal with the information. 'Credible,
relevant and significant' is to be understood as
referring to information that cannot be dismissed from
further consideration by the decision-maker before making
the decision.

Whether information is credible, relevant or significant
is not to be determined by reference to the characterisation
given by the decision-maker to the information in the reasons
for decision. In the present case, the RRT's statement
in its reasons for decision that it gave no weight to the
letter did not demonstrate that there was no obligation
to provide an opportunity to respond to those allegations.
Nor was the RRT relieved from affording procedural fairness
because it could reach its decision on other bases.

The High Court held that the information contained in
the letter could not be dismissed from further consideration
by the decision-maker and procedural fairness required
that the RRT draw the appellant's attention to the
information.

How should the RRT have drawn the information to the
attention of the appellant?

The High Court held that procedural fairness required
that the substance of the allegations made in the letter
be provided to the appellant and that the appellant be
asked to respond to those allegations.

This case posed the difficult problem in that the letter
had been supplied confidentially by a person wishing to
remain anonymous but the information in the letter bore
on whether the appellant was entitled to a protection visa.

The High Court noted that the fact that the author of
the letter asked DIMIA to keep it secret did not mean that
equitable principles about confidential information were
to be engaged in deciding what course the RRT took. Rather,
the nature and extent of the RRT's obligation to
disclose the information were regulated by the Migration
Act 1958 (the Act) and the obligation to afford the
appellant procedural fairness.

The High Court held that, in this case, the content of
the obligation to afford procedural fairness was to be
identified by reference not only to the particular provisions
of the Act but also by reference to the scope and objects
of the Act as a whole. In that latter regard, it was important
to keep two propositions at the forefront of consideration.
First, the Act required that those persons entitled to
a visa be granted the visa, and those not entitled to a
visa not be granted a visa. Secondly, the RRT was exercising
executive power (as opposed to judicial power).

As the RRT was exercising executive power, the steps the
RRT was bound to take to afford procedural fairness were
not necessarily the same as the steps a court should have
taken when deciding a matter by adversarial procedures.
Notwithstanding this, the High Court recognised that public
interest immunity considerations which informed the procedures
of courts may also inform the content of the RRT's
obligation to afford procedural fairness. However, care
must be taken when transposing what is said about public
interest immunity and its application to those who inform
police about criminal activity, to the wholly different
context of inquisitorial decision-making by the Executive.

In identifying what procedural fairness required in the
present case, it was necessary to recognise the important
public interest in ensuring that information from informers
is not denied to the Executive Government when making its
decisions. However, the existence of that public interest
did not mean there was an absolute rule against a decision-maker
disclosing information supplied by an informer or disclosing
the identity of an informer. The application of principles
of procedural fairness in a particular case must always
be moulded to the particular circumstances of that case.

In the present case, the RRT was required to review a
decision of the Executive made under the Act and to decide
whether the appellant was entitled to the visa he claimed.
The information contained in the letter was relevant to
that inquiry and could not be ignored. However, giving
the letter to the appellant or telling him who wrote it
would give no significance to the proper administration
of the Act, which required that those entitled to a visa
be granted a visa and those not entitled be refused. It
was in aid of that important public interest that, so far
as possible, there should be no impediment to the giving
of information to authorities about claims made for visas.
In this case, that public interest could be accommodated
with the need to afford the appellant procedural fairness,
by telling the appellant the substance of the allegations
in the letter. As the appellant would not know the identity
of the person making the allegations, any response to the
allegations would need to be considered in light of the
fact that the credibility of the author could not be attacked.

Implications for clients

Administrative decision-makers will not be able to relieve
themselves of the obligation to afford procedural fairness
by disavowing reliance on certain information in the reasons
for decision, or by making their decision on other bases
unrelated to the information.

If a decision-maker receives adverse information, they
must determine, before the decision is made, whether the
information is credible, relevant and significant to the
decision to be made. If so, procedural fairness will likely
require that some form of that information (even if it
is secret) be provided to a person affected by the decision
for comment. The extent to which the information must be
given to the person for comment will depend on a number
of considerations, including the nature of the information
concerned, the circumstances in which the information was
received, the relevant Act under which the decision is
to be made and the public interest in the proper administration
of that Act.

Text of the decision is available at:
http://www.austlii.edu.au/au/cases/cth/high_ct/2005/72.html

AGS acted as solicitor for the Minister for Immigration
and Multicultural and Indigenous Affairs.

For further information please contact:

Paul Barker
Senior Lawyer
T 03 9242 1257 F 03 9242 1317
paul.barker@ags.gov.au

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