Procedural Fairness - Essay Example

Procedural Fairness: M61 E v Commonwealth of Australia HCA 41 and Plaintiff S10 v Minister for Immigration and Citizenship HCA31 Introduction Procedural fairness is perceived as an important part of judicial functions in ensuring that administrative powers that impact the interests, privileges, and duties of individuals and corporate citizens are exercised pursuant to the rule of law. Australia’s immigration policies arguably attempt to take the administrative decisions of immigration officials outside of the supervision of the courts. The current immigration regime mandates that unauthorized entrants who are intercepted at sea are typically detained at Christmas Island and other offshore locations while their statuses are investigated.1 In the meantime, the Migration Act 1958 and its subsequent amendments increasingly limited the courts’ oversight of immigrant and refugee statuses of detainees.2 The decision in M61/2010E was regarded as a triumph for “the rule of law” in Australia in that it established that detainees offshore were entitled to the same procedural fairness as detainees on shore.3 However, in Plaintiff S10/2011 an application for judicial review of a Ministerial decision refusing a visa was denied on the grounds that the exercise of power under the Migration Act 1958 was not reviewable.4 This essay considers whether or not the rulings in these cases can be reconciled to conclude that the courts have established that procedural fairness cannot be denied offshore detainees or whether or not Plaintiff S10 represents a shift away from this stance. M61/2010E v Commonwealth of Australia Procedural fairness was previously regarded as similar to the requirements of natural justice. However, Mason J. ruled that the requirements of natural justice were more appropriately applicable to the judiciary. For the purpose of reviewing administrative decisions, it was best to perceive of procedural fairness as a “flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.”5 For the most part, the rules of procedural fairness have come to be associated with the legitimate expectations of what public officials should have done in the exercise of a power. Thus legitimate expectations in terms of fairness must be distinguished from disappointment in the outcome of a public body’s decision.6 The rules of procedural fairness were central to the issues raised in M/61. The plaintiffs were detainees at Christmas Island and as such claimed protection consistent with Australia’s treaty obligations under the Refugee Convention’s non-refoulement principle.7 Section 36(2A) of the Migration Act 1958 incorporates the non-refoulement principle by providing the grounds for obtaining a protection visa.8 However, based on investigations made and on behalf of the immigration Minister, a decision was made not to consider the application for visa protection. It would appear that the privative clause contained in Section 474(1) of the Migration Act would preclude any court reviewing a decision made by an administrative body under the Act. A privative clause is intended to prevent courts functioning in a supervisory capacity over public bodies.9 It was previously held that the privative clause does not protect administrative decisions when they fail to comply with a mandatory duty or within the statutory limits of that power.10 Thus jurisdictional errors would not be protected by the privative clause and thus procedural fairness would apply with the result that the decision could be reviewed by the courts. Where an individual’s “fundamental rights are at stake,” decisions must be made applying procedural fairness.11 In M/61 the plaintiffs entered Australia unlawfully and were therefore “unlawful non-citizens” and were accordingly detained.12 According to Section 46A(1) an unlawful non-citizen may not apply for visa protection,13 unless the Minister exercised a discretionary power to grant such a visa.14 The immigration authorities conducted a Refugee Status Assessment (RSA) of the plaintiffs which was followed by an Independent Merits Review (IMR) and both advised that the plaintiffs were not parties entitled to protection.15 The High Court of Australia ruled that although the RSA and IMR procedures were non-statutory, they did arise as a result of statutory provisions, namely the Migration Act 1958 and thus the procedures came within the Court’s jurisdiction. The rationale for this conclusion is found in an earlier decision in which it was held that: When a statute confers power to destroy, defeat or prejudice a person’s rights, interests or legitimate expectation, principles of natural justice generally regulate the exercise of that power and the principles of procedural fairness may be excluded only by plain words of necessary intendment.16 Informed by this earlier the decision, the court ruled that although the Minister could not be compelled to exercise a discretionary power, the plaintiff’s interests and rights were impacted since the inquiries made pursuant to the Migration Act 1958 and had the effect of extending their detention. In the absence of clear words of necessary intendment, the RSA and the IRM’s exercise of a power with statutory foundations were under a duty to observe procedural fairness and to conduct their inquiries pursuant to the law.17 Thus the court was satisfied that fundamental rights were at stake, warranting procedural fairness. Moreover, the privative clause will not provide protection where there is a jurisdictional error. The court ruled that failure to take specific claims relative to fear of persecution upon deportation into account were tantamount to denying the plaintiffs procedural fairness.18 In granting declaratory relief the Court ruled that in making its recommendations to the Minister, the IMR and the RSA made procedural errors of law failing to consider the Migration Act 1958 and case law and “further failed to observe the requirements of procedural fairness”.19 As Crock explained, the significance of the declaratory relief is two-fold. Firstly, any official failing to comply with the declaration risks being held in contempt of court. Secondly, the declaration ensures that public officials observe their obligations to international treaties and in doing so observe the rules of procedural fairness.20 Plaintiff S10/2011 v Minister for Immigration and Citizenship In Plaintiff S10/2011, the plaintiffs relying on the ruling in M61 were unlawful non-citizens who attempted but failed to receive protection visas .The plaintiffs referred to Section 58B of the Migration Act 1958 which confers upon the Minister an “non-compellable” and non-delegable personal discretion” to grant a protection visa to an unlawful non-citizen whose application was previously denied.21 The court ruled however, that M61 indicates that the Minister had a duty to observe procedural fairness when taking into account whether or not to use the discretionary power under Section 46A of the Migration Act 1958. What distinguishes the present case from M61 is that the provisions in question function in an instructive and discretionary manner. Thus the Minister is not under a duty to exercise the discretionary power. Specifically, Chief Justice French ruled that in such circumstances “no question of procedural fairness arises when the Minister declines to embark upon such a consideration.”22 Thus Plaintiff S/10 dealt with the exercise of a discretionary power while M61 dealt with the exercise of a mandatory power. Plaintiff S/10 takes the position that when an official exercises a discretionary power, any inquiries or investigations that are incidental to the exercise of that discretionary power are not subjected to the requirements of procedural fairness.23 In M61the powers exercised by the RSA and IMR were mandatory as they considered whether or not an immigrant should be accorded refugee status and thus invoked statutory and international law. Jurisdictional error was important particularly since the fundamental rights of the applicants were at stake. In M61 it was ruled that the Minister did not have a mandatory duty to exercise the discretion to consider the grant of an application for visa protection and refused mandamus compelling the Minister to exercise the discretion.24 It must also be noted that the High Court of Australia ruled against the grant of a constitutional challenge to validity of a Ministerial discretionary power to grant an application for a visa under the Migration Act. In explaining Section 75 of the Constitution Act which establishes the original jurisdiction of the Court,25 the Court ruled that Section 75 can be invoked when a power is exercised to determine the limits of that power.26 The plaintiffs in Plaintiff S/10 were therefore not asking the court to test the limits of the exercise of a power, but were asking the court to question the exercise of the discretionary power.27 The ruling in M61 therefore did not make a declaration invalidating the procedures and protocols contained in the Migration Act. While the ruling called for procedural fairness in the conduct of the powers conferred by the Migration Act, it also requires that the powers be exercised pursuant to the law. The case only guarantees that the procedure for determining refugee status would be conducted according to law and according to procedural fairness. As Crock and Ghezelbash observed, the ruling in M61merely opened up opportunities for the High Court to be able to review some decisions relative to the processing of unlawful non-citizens who apply for refugee status to safeguard against the risk of a failure to observe procedural fairness.28 It has been observed by the ruling in M61/2010E that: As long as the status determination is tied to the visa grant in some way, the judgment suggests that the process may be reviewable.29 The ruling was never intended to shift the current immigration and asylum regimes away from autonomous government power, but to ensure that judicial oversight of the regime is not completely eroded. In this regard, the decision in M61/2010E brings the judiciary into the decision-making process only insofar as procedural fairness is an issue and the powers that are exercised can be reviewed. It remains the case that official power can be reviewed based on the “legality” of the power and not on the “merits” of the decision.30 Thus a balance is struck to avoid the possibility of all applications for visa protection are not subject to review by the courts. Plaintiff S/10 therefore establishes limitations on judicial review in circumstances where it would be impractical to open up all preliminary and investigative processes to excessive scrutiny by the judiciary. Thus the M61 and Plaintiff S/10 establish appropriate circumstances in which it can be said that a jurisdictional error occurred and therefore warrants judicial oversight where procedural fairness is legitimately expected and was not observed. In this regard, the decision in Plaintiff S/10 does not remove judicial oversight but merely ensures that the judicial oversight is not applicable in all cases. In other words, where a minister exercises a discretionary power in accordance with law, the court is not at liberty to question whether or not procedural fairness was used in the exercise of that discretionary power. Judicial oversight was not warranted in Plaintiff S/10 since it did not involve a statute that conferred a power to destroy the plaintiffs’ interest. The power in question involved that ability to reverse a decision that was detrimental to the plaintiff’s interest. Therefore there are no substantive differences between the ruling in Plaintiff/S10 and M61. M61 was arguably a case in which the plaintiff had a legitimate expectation that evidence capable of supporting an application for refugee status would have been considered by the administrative bodies conducting an investigation. Plaintiff/S10 was arguably a case in which the plaintiffs were merely disappointed in the outcome of visa protection applications and the discretionary which permitted the applications to be dismissed. Conclusion Although the ruling in Plaintiff S/10 appears to depart from the ruling in M61, a closer examination reveals that the former does not represent a shift away from the standards of procedural fairness established in M61. The ruling in M61 was never intended to introduce broad powers of judicial review. Instead, the ruling in M61 merely established that the perception that although the government alone could decide who came into the country and who must be forced to leave, those decisions must be made according to the law and in a manner consistent with procedural fairness. However, the court would only intervene where it had jurisdiction to review the exercise of the power to grant or to refuse to grant visa protection in prescribed circumstances. Bibliography Annetts v McCann [1990] 170 CLR 596. Commonwealth of Australia Constitution Act 1900. Convention Relating to the Status of Stateless Persons 1951. Crock, M. (1996). “Judicial Review and Part 8 of the Migration Act: Necessary Reform or Overkill?” Sydney Law Review, Vol. 18: 267-303. Crock, M. and Ghezelbash, D. (2011). “Due Process and Rule of Law as Human Rights: The High Court and the Offshore Processing of Asylum Seekers.” Australian Journal of Administrative Law, Vol. 18(2): 101-120. Goulidatis, N. (2010). “Privative Clauses: Epic Fail”. Melbourne University Law Review, Vol. 34: 870-885. Groves, M. and Lee, H. P. (2007). Australian Administrative Law: Fundamentals, Principles and Doctrines. Cambridge, UK: Cambridge University Press. Kioa v West [1985] 159 CLR 550. Lane, W. B. and Young, S. (2007). Administrative Law in Australia. Sydney, Australia: Lawbook Co. M61/2010E v Commonwealth of Australia [2010] HCA 41. Migration Act 1958. NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] 193 ALR 449. Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31. Plaintiff S/157/2002[2003] HCA 2. Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicants S134/2002[2003] 211 CLR 441. Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] 214 CLR. Stewart-Weeks, H. (2011). “Case Note: Out of Sight But Not Out of Mind: Plaintiff M61/2010E v Commonwealth.” Sydney Law Review, Vol. 33: 831-847. Vrachnas, J.; Bagaric, M.; Dimopoulos, P. and Pathinayake, A. (2012). Migration and Refugee Law: Principles and Practice in Australia. Cambridge, UK: Cambridge University Press. Read More