Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE AND HEYDON JJ

APPLICANT VEAL OF 2002 APPELLANT

AND

MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS AFFAIRS

& ANOR RESPONDENTS

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72

6 December 2005

M16/2005

ORDER

1. Appeal allowed with costs.

2. Set aside the orders of the Full Court of the Federal Court made on 9 July 2004 and, in their place, order that the appeal to that Court be dismissed with costs.

On appeal from the Federal Court of Australia

Representation:

D S Mortimer SC with R M Niall for the appellant (instructed by Victoria Legal Aid)

A L Cavanough QC with J D Pizer for the first respondent (instructed by Australian Government Solicitor)

No appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

Immigration – Application for protection visa – Decision of Refugee Review Tribunal – Procedural fairness – Where Tribunal reviewed an unsolicited letter received by the Department of Immigration and Multicultural and Indigenous Affairs, which made allegations against the appellant – Where Tribunal did not inform the appellant of the existence of the letter or its contents – Where Tribunal affirmed decision under review and said that in reaching its decision it gave no weight to the letter – Whether procedural fairness required the Tribunal to inform the appellant of the existence of the letter or its contents.

Words and phrases – "procedural fairness", "credible, relevant and significant".

Migration Act 1958 (Cth), ss 418(3), 424A, 438.

1. GLEESON CJ, GUMMOW, KIRBY, HAYNE AND HEYDON JJ. In June 2001, the appellant and his partner applied for protection visas. In December 2001, a delegate of the Minister refused those applications. The appellant and his partner each sought review by the Refugee Review Tribunal ("the Tribunal") of the refusal of their applications. After those applications for review had been made, but before the Tribunal had completed its review, the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") received a letter about the appellant. The letter was unsolicited but not anonymous; it gave the author's name and address. 2. The author of the letter made allegations against the appellant. First, the author said that the appellant had admitted that he had been accused of killing a person prominent in the political affairs of the appellant's country of origin (Eritrea). Secondly, the author alleged that the appellant was in fact a supporter of, and working for, the government of Eritrea. The author concluded the letter by advising the Department "to keep [this] information secret". 3. When an application for review is made to the Tribunal, s 418(3) of the Migration Act 1958 (Cth) ("the Act")[1] obliges the Secretary to the Department, as soon as is practicable after being notified of the application, to give to the Registrar of the Tribunal, all documents in the possession or control of the Secretary considered by the Secretary to be relevant to the review. The Department sent the letter to the Tribunal. But it seems that it sent the letter after the Secretary had transmitted documents to the Tribunal in the intended performance of the obligation imposed by s 418(3). 4. In conducting its review, the Tribunal did not tell the appellant that it had received the letter; the Tribunal did not tell the appellant that the allegations made in the letter had been made; the Tribunal did not ask the appellant about the substance of any of the allegations made in the letter. 5. The Tribunal affirmed the decisions not to grant protection visas to the appellant and his partner. At the end of its reasons, the Tribunal said that in reaching its findings it "gives no weight" to the letter sent to the Department and forwarded to the Tribunal. The Tribunal said: