The High Court has dismissed an appeal from a decision of the Full Federal Court relating to procedural fairness and merits reviewer procedures and replacements in the assessment of protection visas. WZARH, a Sri Lankan Tamil, entered Australia by boat in November 2010 and was classed as an offshore entry person. Following an adverse refugee status determination, WZARH sought independent merits review of the decision. A recording and transcript of an interview with the reviewer were produced and documents tendered by WZARH to the reviewer. However, the initial reviewer was unavailable to complete the process and the application was transferred to a second reviewer, who, after examining the transcripts and documents, found that the appellant did not meet the criteria for a protection visa. WZARH claimed that he had been denied procedural fairness (he was not heard in person by the final reviewer) and that the final reviewer did not take into account a relevant consideration, specifically the scarring on his arm. The Full Federal Court allowed WZARH’s appeal against the Federal Circuit Court’s decision to dismiss his application for review, agreeing that he had been denied procedural fairness because he had a legitimate expectation that either the first reviewer would complete the recommendation or that any replacement would conduct a new interview (at [23]–[31]), but rejecting the relevant consideration argument regarding the scarring (at [32]–[37]). Before the High Court, the Minister sought to argue that Flick and Gleeson JJ erred in using the concept of ‘legitimate expectation’ in their analysis of procedural fairness requirements, and that the Full Court erred in concluding that there had been a denial of procedural fairness without indicating why denying a second review was procedurally unfair.

The High Court unanimously dismissed the appeal. The joint judgment (Kiefel, Bell and Keane JJ) agreed that while the ‘legitimate expectation’ criteria had been rejected as ‘unnecessary and unhelpful’ and may distract form the real questions of the requirements of procedural fairness (see [28]–[30]), the conclusion in Flick and Gleeson JJ’s decision was that the second reviewer’s failure to observe the requirements of procedural fairness involved a ‘fundamental change to the administrative process being pursued without [the respondent] being alerted to the change’, a conclusion which ‘might have been more readily apparent’ had the concept of legitimate expectation been omitted (see [31]). In holding that the review process was unfair, the joint judges held that, contrary to the Minister’s submission, this case was readily distinguishable from Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6. While in Lam the applicant did not lose any opportunity to advance his case and thus did not suffer any practical injustice, in the present matter the second reviewer’s failure to re-interview means the respondent lost the opportunity to convey his demeanour in an interview, which could have be relevant to evaluating the genuineness of his account (at [37]–[44]): ‘The benefit to a decision-maker of seeing a witness advance his or her case should not be exaggerated, but … it cannot be dismissed as illusory’: [44]. The joint judges also agreed with the Full Court’s conclusion that there was no reasonable basis on which the second reviewer could fairly have refused the respondent an opportunity to be heard on how the review process should proceed after the withdrawal of the first reviewer (see [46]–[47]).

Gageler and Gordon JJ agreed with the conclusions of the joint judges, but focused on the procedures of review rather than the second reviewer’s evaluation. After laying out the principles of procedural fairness reviews in the context of refugee and migration cases (see [51]–[61]), Gageler and Gordon JJ emphasised that the change in procedure without notice to the respondent constituted a failure to afford the respondent a reasonable opportunity to be heard (at [62]–[64]): ‘The opportunity that had been given [to the respondent] was an opportunity personally to convince an identified individual who was to make the assessment, including by responding to specific questions which that person raised. The opportunity became, in retrospect, an opportunity to present a case to an unknown assessor by way of a record of oral evidence and written submissions’ (at [64]). Gageler and Gordon JJ reasoned that the significance in the change of procedure is to be assessed by reference to the nature of the assessment that the second reviewer had to perform, rather than by examining the reasoning which the second reviewer adopted: at [65]. Because the second reviewer ought reasonably to have considered that earlier evidence and submissions to the first reviewer might differ if the respondent knew the first reviewer was not to make the assessment, procedural fairness required notifying the respondent of the change in procedure, and opportunities to make supplementary written submissions and request to supplement the interview with further oral evidence (at [66]–[67]). While it would be a hypothetical inquiry to consider whether a further hearing should have been granted, the failure to notify the respondent of the change in procedure constituted a failure to afford the respondent a reasonable opportunity to be heard (see [68]–[69]).