Claims of denial of procedural fairness can be a real life-saver!
If a visa application has been refused, and the refusal affirmed by the Tribunal, it may well be possible to get the Tribunal decision “quashed” in the Federal Circuit Court and sent back to the Tribunal for re-determination if it can be shown that the Tribunal did not afford the applicant procedural fairness.
The power of a claim of denial of procedural fairness was illustrated in a decision that was handed down by Judge Riley of the Federal Circuit Court in February of this year and that appeared on Austlii earlier this week: CCM15 & Ors v Minister for Immigration & Anor (2017) FCCA 304 (23 February 2017).
Here’s the story of this case:
The applicant was seeking a Protection visa on the grounds that the applicant had experienced politically motivated persecution in the applicant’s home country, and would be subject to such persecution again if forced to return .
At the hearing, the Tribunal told the applicant that the Australian Embassy in the relevant country had received an anonymous “dob in” letter that alleged that a family member of the applicant was a member of a particular political group.
However, the Tribunal did not tell the applicant that it actually had a copy of the “dob in” letter before it, and did not provide a copy of the “dob in” letter to the applicant.
The Tribunal also summarized the contents of the “dob in” letter by telling the applicant that this letter had said that she and her co-applicants had “different names”. However, as a matter of fact, the “dob in” letter did not actually say that the applicants had different names. Rather, what had occurred was that the letter had set out the applicants’ names in two different places with variations in the spelling, written in a script other than English.
The Court concluded that it could be assumed that there was no set spelling of the applicants’ names in English, so the fact that there was a variation in the English spelling of their names in the translated version of the “dob in” letter was, in the Court’s view, of no significance.
Consequently, the Court determined that because the Tribunal had not given the applicants’ an accurate summary of the “dob in” letter (because it informed the applicants that the letter claimed that they had been using different names when this was not what the letter actually said) , and further, because the Tribunal had not actually given the applicants a copy of the “dob in” letter, the applicants had been denied procedural fairness and jurisdictional error had occurred.
It was the case that in its written reasons for affirming the refusal of the Protection visa application, the Tribunal stated that it had not put any weight on the “dob in” letter.
The Minister therefore argued before the Court that because the Tribunal had not given the “dob in” letter any weight, the Tribunal’s failure to accurately explain the contents of the letter could not have affected the outcome of the proceedings.
However, the Federal Circuit Court noted that, under the High Court’s decision in Applicant of VEAL of 2002 v Minister for Immigration and Multicultural Affairs, “the obligation to disclose the gist of a “dob in” letter is not satisfied by the Tribunal asserting that it placed no weight on it.”
More proof about how central and important that procedural fairness is, and how arguments based on procedural fairness can be used to leverage successful judicial review applications!