WZARH v Minister for Immigration and Border Protection [2014] FCAFC 137

WZARH v Minister for Immigration and Border Protection [2014] FCAFC 137

The appeal was allowed because the appellant had been led by the first Independent Merits Reviewer’s statements and conduct to expect that the reviewer who interviewed him would make the recommendation, or that if a different reviewer was to make the recommendation he would be told and given an opportunity to seek an oral hearing or address how the review should continue. The second reviewer made the adverse recommendation without notifying the appellant of the change or giving him that opportunity. In circumstances where credibility was significant and an oral hearing might have affected the assessment, that change in procedure caused practical injustice and breached procedural fairness....

Jurisdiction
Australia
Judgment Date
20 October 2014
Procedural Posture
Appeal From the Federal Circuit Court of Australia Concerning Judicial Review of an Independent Merits Review Recommendation / Full Court Appeal
Outcome
Appeal allowed.
Legal Topics
['procedural Fairness' 'legitimate Expectation' 'independent Merits Review' 'oral Hearing' 'credibility Findings' 'protection Visa Assessment']
['administrative Law' 'migration Law'] ['procedural Fairness' 'legitimate Expectation' 'independent Merits Review' 'oral Hearing' 'credibility Findings' 'protection Visa Assessment']

Case Brief

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Procedural Posture

Appeal From the Federal Circuit Court of Australia Concerning Judicial Review of an Independent Merits Review Recommendation / Full Court Appeal

Legal Issues

  1. 1 ['Whether the appellant was denied procedural fairness because the Independent Merits Reviewer who made the adverse recommendation did not conduct an oral hearing or interview with him after the original reviewer became unavailable.' 'Whether the appellant had a legitimate expectation that the reviewer who heard him orally would make the recommendation, or that any replacement reviewer would first conduct an oral hearing or give him an opportunity to address the changed procedure.' "Whether visible scarring on the appellant's arm was not taken into account in assessing his risk profile on return to Sri Lanka."]

Ratio Decidendi

The appeal was allowed because the appellant had been led by the first Independent Merits Reviewer’s statements and conduct to expect that the reviewer who interviewed him would make the recommendation, or that if a different reviewer was to make the recommendation he would be told and given an opportunity to seek an oral hearing or address how the review should continue. The second reviewer made the adverse recommendation without notifying the appellant of the change or giving him that opportunity. In circumstances where credibility was significant and an oral hearing might have affected the assessment, that change in procedure caused practical injustice and breached procedural fairness....

Court Disposition

Appeal allowed.

Orders

  • ['The appeal is allowed.' 'Orders 1 and 2 of the Federal Circuit Court made on 14 October 2013 in PEG 218/2012 are set aside.' 'It is declared that the decision of the Independent Merits Reviewer made on 25 July 2012 in review case number NEC053 was arrived at in breach of the rules of procedural fairness.' "The...