SOS 005 v Republic [2018] NRSC 12; Refugee Appeal Case 15 of 2017 (22 March 2018)

IN THE SUPREME COURT OF NAURU

AT YAREN

Case No. 15 of 2017

IN THE MATTER OF an appeal against a decision of the Refugee Status Review Tribunal TFN T16/00325, brought pursuant to s 43 of the Refugees Convention Act 2012

BETWEEN

SOS 005 Appellant

AND

THE REPUBLIC Respondent

Before: Freckelton J

Appellant: Christine Melis
Respondent: Catherine Symons

Date of Hearing: 6 February 2018

Date of Judgment: 22 March 2018
CATCHWORDS

Appeal – procedural fairness – natural justice – s 41 of the Refugees Convention Act 2012 (Nr) – APPEAL DISMISSED.

JUDGMENT

1. This matter is before the Court pursuant to s 43 of the Refugees Convention Act 2012 (“the Act”) which provides:
   

(1) A person who, by a decision of the Tribunal, is not recognised as a refugee may appeal to the Supreme Court against that decision on a point of law.

(2) The parties to the appeal are the Appellant and the Republic.

...

2. A refugee is defined by Article 1A(2) of the Convention Relating to the Status of Refugees 1951 (“the Refugees Convention”), as modified by the Protocol Relating to the Status of Refugees 1967 (“the Protocol”) as any person who:
   

“Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable to, or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable to or, owing to such fear, is unwilling to return to it ...”

3. Under s 3 of the Act complementary protection means protection for people who are not refugees but who also cannot be returned or expelled to the frontiers or territories where this would breach Nauru’s international obligations.
   
4. The determinations open to this Court are defined in s 44 of the Act:
   

(1) In deciding an appeal, the Supreme Court may make either of the following orders:

(a) an order affirming the decision of the Tribunal;

(b) an order remitting the matter to the Tribunal for reconsideration in accordance with any directions of the Court.

RELEVANT CHRONOLOGY

5. The Refugee Status Review Tribunal (“the Tribunal”) delivered a decision on 8 April 2015 affirming the decision of the Secretary of the Department of Justice and Border Control (“the Secretary”) of 25 September 2014, that the Appellant was not recognised as a refugee under the Convention, and is not owed complementary protection under the Act.^[1]
   
6. The Appellant appealed to this Court by an Amended Notice of Appeal and on 23 March 2016, this Court made orders qng the decision of the Trib Tribunal and remitting the matter to the Tribunal for reconsideration according to law.^[2]
   
7. On 16 May 2016, the Appellant received a written invitation in accordance with s 40 of the Act to appear before the Tribunal “to give evidence and present arguments” on 2 June 2016. It was noted in the letter that “if the applicant does not appear before the Tribunal on that date and time specified, the Tribunal may make a decision on the review without taking further action to allow the applicant to appear.”^[3]
   
8. On the same date, the Appellant’s Claim Assistance Providers (“CAPs”), responded, asking a variety of questions about the constitution of the Tribunal, the documentation to go before the Tribunal and the proposed scope of the hearing. CAPS Nauru mooted the option of an adjournment.^[4]
   
9. On 19 May 2016 the Tribunal responded, amongst other things, stating:
   

“The applicant can provide any further evidence he wants to on any aspect of his claims including new claims. The tribunal will have regard to all of his evidence to date including at the previous hearing The tribunal will also have regard to all of the submissions which have already been provided. Any further submissions could focus on legal issues, developments since the last hearing or new/updated country information”.^[5]

10. The Tribunal indicated its intention to give priority to remitted cases and declined to adjourn the hearing.^[6]
    
11. On 19 May 2016 CAPs Nauru replied, acknowledging the “considered response” by the Tribunal and indicating that it understood “your reasoning and we will be ready for our client to be heard in the June sitting as scheduled.”^[7]
    
12. On 31 May 2016 Craddock Murray Neumann filed 21 pages of submissions on behalf of the Appellant, addressing a range of matters including credibility issues that had emerged at the previous hearing before the Tribunal.^[8]
    
13. No indication was given in writing that the Appellant would not attend the hearing but on the scheduled date he failed to attend.
    
14. However, the proceeding did not conclude at this point. On 2 July 2016 the Tribunal wrote to CAPs Nauru seeking a copy of documentation.^[9] On 6 July 2016 CAPs Nauru provided it.^[10] Even as at this time, it was not argued on behalf of the Appellant that the hearing should be rescheduled so that he could attend and, for instance, give evidence.
    
15. The Tribunal handed down its decision on 3 August 2016 affirming the decision of the Secretary that the Appellant was not recognised as a refugee and was not owed complementary protection under the Act.
    

THE APPEAL

16. The Appellant filed an Amended Notice of Appeal on 6 August 2017 pursuant to s 43(1) of the Act contending that:
    

“The Tribunal erred in law by failing to act in accordance with section 22 of the Refugees Convention Act 2012 and the principles of procedural fairness by not alerting the appellant to the matters in issue and giving him the opportunity to comment on or respond to them.

Particulars

The matters in issue and those that were the subject of adverse findings that the Tribunal failed to put to the appellant for comment or reasons are at paragraphs 91-119 of its decision.”

17. On application by the Appellant, and with the consent of the Respondent, on 6 February 2018 time for appeal was extended in the interests of the administration of justice pursuant to s 43(5) of the Act.
    

BACKGROUND

18. The Appellant is a single male from Quetta in Baluchistan, Pakistan. He is of Pashtun ethnicity and Sunni Muslim religion. His father is originally from Afghanistan, but now remains in Quetta with the Appellant’s mother, older brother and two sisters.
    
19. The Appellant has applied for refugee status or complementary protection on the basis of a fear of harm due to his Pashtun ethnicity, his membership of the particular social group constituted by perceived wealthy Pashtuns in Pakistan, and his imputed political opinion in opposition to Baluchi extortionists in Pakistan because of his Pashtun ethnicity and perceived wealth.
    
20. The Appellant departed Quetta for Karachi on 12 August 2013 and departed Pakistan for Thailand on 31 August 2013. From Thailand, the Appellant travelled through Malaysia and Indonesia, before arriving on Christmas Island on 10 November 2013. The Appellant was transferred to Nauru three days later.
    

INITIAL APPLICATION FOR REFUGEE STATUS DETERMINATION

21. The Appellant attended a Refugee Status Determination (“RSD”) Interview on 10 April 2014. At that Interview, the Appellant said that he worked for his father as a salesman in fruit markets in Taftan and Quetta in Baluchistan between 1999 and 2012. In 2011, his father received a telephone call at the fruit store in Taftan demanding money and threatening to kill the Appellant. The caller did not identify himself, but the Appellant suspected it was a local of Baluchistan, as it is common for the locals to threaten Pashtuns, extort money and kidnap them. The Appellant did not tell his father about the threat at the time, and paid the sum demanded to masked men on motorcycles who collected the money. The Appellant and his father returned to Quetta that day, and did not go back to Taftan.^[11]
    
22. Over two days in May 2013, the Appellant’s father received three telephone calls demanding that the Appellant and his father pay or leave the business, as it belonged to the Baluchi people. The Appellant claimed that he was targeted, rather than his brother, because his brother was a doctor and not involved in the business. The father refused to pay the sum demanded and told the caller he could not leave the business because he had nowhere to go. Two days after receiving the third threatening phone call, another worker at the market in Quetta noticed some men in a car with dark windows outside the father’s shop. The Appellant was on his way to work when this happened. His father called him and told him to go home, and then told him about the three threatening phone calls he had received. The Appellant stopped going to work and his father disconnected their telephones.^[12]
    
23. After the Interview, the Appellant further informed the Secretary that Baluchi men killed his cousin in June 2014. Prior to being killed, the cousin worked as a police officer and was making inquiries to find out why the Baluchi men were troubling his cousins and uncle. After the cousin made these inquiries, the Baluchi men telephoned the Appellant’s father and said words to the effect of “you must be very proud of your nephew for being in the police. We’re going to show him as well”. Around six to seven days after the cousin was killed, the Baluchi people contacted the Appellant’s father and said words to the effect of “look at the person you were very proud of, now look at him. From now on we are not going to ask for money we are going to show you what we want”. The Appellant added that his friends and his family were killed because they were Pashtun.^[13]
    
24. The Secretary considered the following elements of the Appellant’s material claims to be credible:
    
    • The Appellant is a Sunni Pashtun from Quetta, Baluchistan;
    • The Appellant worked in his father’s fruit selling business since 1999;
    • The Appellant’s father was threatened in 2011 by men who extorted money out of him;
    • The Appellant’s father received three threatening phone calls in May 2013, where men demanding money from his father but he refused to pay;
    • Following this event, a suspicious car was seen at the father’s business and the Appellant stopped going to work;
    • The Appellant’s father reduced his visibility in the business, but he continues to own it; and
    • His cousin was a police officer who was killed by unknown people.^[14]
      
25. However, the Secretary did not accept the following elements of the Appellant’s material claims to be credible:
    
    • The Appellant was targeted by Baluchi men on account of his Pashtun ethnicity or imputed political opinion against Baluchis, kidnappers or extortionists in Pakistan; or
    • Baluchi men specifically threatened the Appellant.^[15]
      
26. In making these adverse findings, the Secretary considered it implausible that the Baluchi men would threaten the Appellant personally when the Appellant’s father owned the business.^[16] Given the Appellant’s father remained in Quetta selling fruit and had not experienced any further threats, the Secretary stated that it was also difficult to believe that the Appellant would experience any harm from the men.^[17]
    
27. The Secretary found that there was limited evidence to support that Baluchi militant groups in Quetta targeted Pashtun businessmen, or other non-Baluchi residents. As such, there was no reasonable possibility of a Pashtun in Quetta facing harm on the basis of his ethnicity. In addition, there was no reasonable possibility of successful non-Baluchi businessmen in Quetta experiencing harm.^[18] Furthermore, the fact that the Appellant’s father, as the owner of the business and the subject of previous extortion attempts, has remained in Quetta and not experienced further harm, suggests that the Appellant would not face a reasonable possibility of harm if returned to Quetta. This finds further support in that the Appellant himself never experienced harm from the Baluchi men, and remained in Quetta for three months after the incident in 2012 without difficulty.^[19]
    
28. The Secretary concluded that the Appellant’s fear of harm was not well-founded and the Appellant was not a refugee within the meaning of the Convention.^[20] The Secretary further concluded that there was no reasonable possibility the Appellant would face harm if returned to Pakistan that would constitute a breach of Nauru’s international obligations, and thus that Nauru did not owe the Appellant complementary protection.^[21]
    

FIRST APPLICATION TO REFUGEE STATUS REVIEW TRIBUNAL

29. The Appellant appeared before the Tribunal on 30 January 2015, assisted by an interpreter in the Pashtun language and a representative. The Appellant maintained his key claim that Baluchi people in Quetta were demanding money from people within the particular social groups of “perceived wealthy Pashtuns in Pakistan” or “wealthy Afghan businessmen”. In addition to reiterating and expanding upon other claims, the Appellant claimed his brother had to stop working at the hospital and was confined to the home, although later claimed that his brother worked in a polio immunisation team not far from the family home, and his family was dependent on this income.^[22]
    
30. The Tribunal accepted that the Appellant’s father operated a successful business in Taftan and Quetta and the Appellant worked in the business.^[23] The Tribunal also accepted that the Appellant’s father received an extortion threat in 2011 and that he paid some money at that time, and another threat in 2013 although the father did not make any payment.^[24] The Tribunal considered that the Appellant’s evidence regarding the threats in 2013 was inconsistent and speculative, and therefore concluded the Appellant did not receive any direct threats and was not the target of the threats in 2013.^[25]
    
31. While the Tribunal accepted that the Appellant’s cousin was a policeman, and had been targeted and killed,^[26] it did not accept that the same Baluchi men who threatened the Appellant’s father in 2013 killed his cousin.^[27] Noting country information that insurgents frequently target policemen, the Tribunal found that the cousin was targeted because he was a policeman, and not because he was a member of the Appellant’s family.^[28] As such, the killing did not demonstrate an ongoing adverse interest in the Appellant’s family. As with the Secretary, the Tribunal also noted that the Appellant’s father had never been harmed, and the Appellant remained in Quetta for three months after the threats in 2013 without difficulty, pointing to no reasonable possibility of the Appellant suffering harm amounting to persecution if returned to Pakistan.^[29] The fact the Appellant is also not “wealthy” himself, and that his family’s wealth had diminished since his father handed over responsibility for the business, further supported that the Appellant was not likely to be targeted if returned to Pakistan.^[30]
    
32. The Tribunal also found that, while there is country information suggesting that there are attacks against non-Baluchi citizens in Baluchistan, the reports primarily detail targeted attacks against Punjabis, and not Pashtuns. In light of this, and the fact Pashtuns constitute a sizeable majority in Baluchistan, the Tribunal did not accept that the Appellant faced a reasonable possibility of human rights violations amounting to persecution on account of his Pashtun ethnicity, or any imputed political opinion as an opponent of the Baluchis, if returned to Baluchistan.^[31]
    
33. Accordingly, taking the Appellant’s claims both individually and cumulatively, the Tribunal found that the Appellant had no well-founded fear of persecution, and was not a refugee.^[32] As there was no reasonable possibility of the Appellant experiencing harm upon return to Baluchistan, Nauru’s complementary protection obligations were also not engaged.^[33]
    

FIRST APPEAL TO SUPREME COURT OF NAURU

34. The Appellant appealed the decision of the Tribunal to this Court, and orders were made in respect of that appeal on 23 March 2016. This Court found that the Tribunal erred in law by failing to discharge its statutory duty through not taking into account the Appellant’s two written statements dated 29 January 2014 and 5 November 2014. The relevant information in these statements detailed:
    
    • (a) how the Appellant intended to live and work in the reasonably foreseeable future upon his return to Pakistan;
    • (b) how the Appellant and his father managed to avoid detection by the Baluchis before the Appellant departed Pakistan;
    • (c) the father’s business partner’s identity as a Pashtun Kakar and that militants had “turned their attention to the Pashtun population” in Pakistan, apart from “members of the Qasi and Kakar tribes (who had been settled in Baluchistan for generations)”.
      
35. The decision of the Tribunal was quashed and the matter remitted for reconsideration with a direction that the two statements be taken into account.
    

SECOND APPLICATION TO THE REFUGEE STATUS REVIEW TRIBUNAL

36. On 2 June 2016 he Appellant was invited to attend a further hearing before the Tribunal, differently constituted. The Appellant failed to appear at that hearing, and the Appellant’s representatives proffered no reason for his non-appearance. They made no request that for the hearing to be adjourned
    
37. The Tribunal therefore exercised its power to make a decision on the review without taking any further action under s 41(1) of the Act.
    
38. The Tribunal noted that the submissions dated 31 May 2016 reiterated previous claims and evidence said to establish the Appellant’s case for recognition as a refugee, and emphasised that the Appellant had no first-hand knowledge of many of the things he was asked about at previous interviews, and did not know if any further threats had been made against his family in Pakistan.^[34]
    
39. The Tribunal was concerned about the credibility of the Appellant’s claims, arising from variations in the Appellant’s evidence over the course of the RSD process, the internal inconsistencies or contradictions in the claims, or because they were not supported by the evidence. These variations or inconsistencies related to:
    
    • the timing of the second group of threats, and the period of the Appellant’s confinement at home before fleeing Pakistan;^[35]
    • the motivation that he perceived for the threats against his family, from the extortionists being unidentified persons with financial motivations at the Transfer Interview, to being Baluchi men with racial motivations;^[36]
    • the nature of the demand, from demanding money purely, to also demanding that the family leave their business in Quetta and return to his father’s country (considered to mean Afghanistan);^[37]
    • the seriousness of the threats against the Appellant’s father, and the father’s failure to act on the threats, without encountering any harm over the foregoing three years;^[38]
    • whether his brother had been threatened by the extortionists and had to stop working as a result;^[39]
    • the circumstances surrounding the death of his cousin, allegedly killed by the extortionists to teach the Appellant’s father a lesson;^[40]
    • if the extortionists were prepared to kill the Appellant’s cousin, how his father and his brother managed to avoid such action;^[41]
    • the lack of attribution of any motivation to the killers of his cousin;^[42] and
    • the absence of any suggestion of follow-up or investigation by the police to the murder of his cousin.^[43]
      
40. While the Tribunal accepted that the Appellant’s father was a victim of extortion in 2011, the Tribunal did not accept that there was any political or racial motivation for this, that the Appellant himself was ever threatened, that the father was targeted for extortion in 2013, that his father was forced to hand over the business due to the threats, or that the Appellant’s cousin was killed for the reasons claimed.^[44] The Tribunal therefore did not accept the Appellant’s claim that he was facing any ongoing threat of serious harm in Quetta from Baluchis, or anybody else, to be credible.^[45]
    
41. As with the first Tribunal, the second Tribunal also rejected that there was a reasonable possibility of the Appellant being harmed on account of his Pashtun ethnicity,^[46] any imputed political opinion as an opponent of the Baluchis,^[47] or being a member of the particular social groups comprising “wealthy Pashtuns” or “wealthy businessmen”.^[48] The Tribunal concluded that the Appellant did not fall within the Convention definition of refugee.^[49] In addition, in light of that the fact the Appellant did not face any reasonable possibility of harm from the Baluchis, or discrimination as a Pashtun, the Tribunal further concluded that the Appellant was not owed complementary protection.^[50]

THE APPEAL

ARGUMENTS OF THE APPELLANT

42. The Appellant relied upon s 41 of the Act and placed emphasis on the fact that the Second Tribunal stated at paragraph [114] of its decision that:
    

“Having conducted a preliminary review of the claims and evidence, the Tribunal identified various matters of concern as to whether the applicant was a refugee or owed complementary protection. The Tribunal had intended to alert the applicant to the matters in issue at the hearing, and put its concerns to him to give him the opportunity to comment on or to respond to them, but he has not availed himself of the opportunity to appear before the Tribunal. On the evidence before it, the Tribunal’s concerns remain, and it does not accept as credible the applicant’s claim to be facing any ongoing threat of serious or significant harm in Quetta, whether from Baluchi separatists or anyone else.”

43. This, the Appellant submitted, demonstrated the centrality of the matters that were not put to the Appellant and the need for procedural steps as a matter of fairness to have been taken to enable such a course.
    
44. The Appellant also highlighted a passage late in the decision of the Tribunal which emphasised the centrality of the issue of credibility to its decision and the fact that its decision might have been different had it reached a different evaluation in relation to the Appellant’s credibility:
    

“A question nevertheless arises on the facts as to whether the applicant himself has been targeted for reason of his membership of a particular social group comprising his family, in order to pressure his father into meeting the extortion demands. The Tribunal considers that this claim, if made out, would bring the applicant within the scope of the Convention definition of a refugee. However, in light of the credibility findings set out above, the Tribunal is not satisfied that the applicant had been targeted in this way, and is therefore not satisfied that there is more than a remote possibility of the applicant being persecuted on this basis if he returns to his home Quetta in the reasonably foreseeable future.”^[51]

45. The Appellant relied upon the following passage in the judgment of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs^[52] to contend that it was obligatory for the Tribunal to put the matters relating to the Appellant’s credibility to him:
    

“The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review.” That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.”

46. The Appellant also relied on a passage later in the judgment where the High Court stated:
    

“...where... there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.”^[53]

47. The Appellant relied upon a series of eight inconsistencies which contributed to the adverse findings in respect of the Appellant’s credibility and contended that it was incumbent upon the Tribunal to exercise its discretion under s 41(2) of the Act to reschedule the hearing or delay its decision to enable the Appellant to appear before it and have such matters raised with him. It argued that to fail to do so was to breach the obligation to accord procedural fairness.
    
48. The Appellant argued that the obligation to accord natural justice to the Appellant had its source in the common law of Nauru and that s 41(1) of the Act does not manifest an intention on the part of the Nauruan government to exclude procedural fairness. It was contended that, as s 41(1) must be read in conjunction with s 41(2), “this suggests a legislative intention that the Tribunal ought at least turn its mind to whether a situation warrants a re-scheduled hearing or a delay in its decision, even in the absence of a request for adjournment, so that issues can be put to the applicant for response, either orally or in writing.”^[54]
    
49. In the alternative, the Appellant argued that the Tribunal should have invited the Appellant to make supplementary submissions in relation to its concerns over the credibility of his claims even where he failed to appear at the hearing.
    

ARGUMENTS OF THE RESPONDENT

50. The Respondent contested that the question was whether s 41 of the Act ousts procedural fairness, and argued that the question for this Court was whether, having regard to the facts and circumstances of the case, what content should be given to the requirement to accord the Appellant procedural fairness.
    
51. The Respondent contended that the requirement to accord procedural fairness is unhelpful when considered in the abstract and, in particular, when divorced from the circumstances of the case. It noted that there is no fixed content to the duty to accord procedural fairness – as Mason J observed in Kioa v West^[55]:
    

“...the expression, “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations.”

52. The Respondent argued that s 41(1) of the Act is facultative and provides the means by which the Tribunal, having extended an opportunity to the applicant to attend and participate in a hearing, may proceed without further recourse to the applicant to determine the review. It drew attention to the fact that by virtue of s 46(1) of the Act, when a matter is remitted to the Tribunal by the Supreme Court for reconsideration, the Tribunal “must complete its reconsideration within 90 days.”
    
53. It placed emphasis on the fact that neither the common law nor the Act imposes upon the Tribunal the task of ensuring that a party takes “the best advantage” of the opportunity to participate in the hearing.^[56]
    
54. It argued that the Tribunal in the circumstances of the case discharged its duty to afford the Appellant procedural fairness. It argued that:
    

“The Tribunal’s dispositive findings were the result of an analysis and subjective appraisal of the appellant’s claims and evidence (including a lack of evidence) provided for the most part before the matter was remitted.”

55. In this instance, the Respondent pointed out, the material that underpinned the Tribunal’s decision was the evidence and submissions provided by the Appellant, including in the context of the First Tribunal proceeding. It noted that in light of the significant decision of the Full Court of the Federal Court in Commissioner for Australian Territory Revenue v Alphaone Pty Ltd,^[57] it is obligatory to afford to an applicant the opportunity to respond in relation to adverse material from other sources that is before the decision-maker as well as adverse conclusions which would not obviously be open on the known material. However, it contended that this consideration did not arise in the case at hand.

CONCLUSIONS

56. The wording of s 41(1) of the Act bestows upon the Tribunal a discretion to make a decision on a review “without taking further action to allow or enable the applicant to appear before it.” The discretion is broad and manifestly intended so to be. While the Tribunal is empowered by s 41(2) to reschedule a hearing to enable the applicant’s appearance before it, this does not constitute any form of requirement that the Tribunal exercise its discretion in any given scenario. This goes to the distinction between a power and a duty.
    
57. The essence of the Appellant’s argument was that the Tribunal in the particular circumstances was obliged to refrain for the time being from making its decision and that it was required to adjourn the hearing in order to provide the Appellant with a further opportunity because it was contemplating engaging in a reasoning process different from that adopted by the Secretary, albeit on the basis of material for the most part available to the Secretary.^[58]
    
58. This raises the question of what constitutes the content of the common law duty to accord procedural fairness. There is ample authority that the duty to observe fairness is a “universal attribute of the judicial function” and that the principles of natural justice are the presumed intent of Parliament unless clearly excluded by legislation.^[59]
    
59. The content of the requirement varies according to the circumstances^[60], including the statutory framework within which a decision-maker exercises statutory power.^[61] Where a party is liable to be affected directly adversely by a decision-maker’s decision, they must be given the opportunity to be heard^[62]. As Kirby J has framed it:
    

“Once it is accepted that an interest may be seriously affected by the exercise of a statutory power, an opportunity ought ordinarily be given to the person concerned to respond to adverse information that is credible, relevant and significant to the decision to be made.”^[63]

60. If information on some factor personal to the individual is obtained from a source other than the person and is likely to have an effect on the outcome, they should be given an opportunity of responding to it.^[64] However, it is important in any given case to have regard to the practical context in which the decision-maker must consider the exercise of power.^[65]
    
61. There are limitations to this obligation to provide an opportunity to respond. Within the bounds of rationality a decision-maker is generally not obliged to invite comment on the evaluation of the subject’s case^[66]. As Lord Diplock held in F Hoffman La Roche and Co; AG v Secretary of State for Trade and Industry:
    

“The rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If that were a rule of justice only the most talkative of judges would satisfy it and trial by jury would be abolished.” ^[67]

62. In general terms it is incumbent upon a party to supply relevant information and they do not have a legitimate grievance just because it is not accepted; this is not a procedural fairness issue.^[68]
    
63. Jenkinson J in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs usefully summarised the law on the issue:
    
    1. The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it: Kioa v West at 587 (Mason J; Sinnathamby at 348 (Burchett J; Broussard v Minister for Immigration and Ethnic Affairs (1981) 21 FCR 472 (Burchett J).
    2. The subject is entitled to respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Minister of Immigration and Ethic Affairs v Kumar (unreported, Full Court, Federal Court, 31 May 1990); Kioa v West at 573, 588 and 734. ^[69]
       
64. In the same case Gummow J concluded that:
    

“... in a particular case, fairness may require the applicant to have the opportunity to deal with matters adverse to the applicant’s interests which the decision-maker proposes to take into account, even if the source of concern by the decision-maker is not information or material provided by the third party, but what is seen to be the conduct of the applicant in question.” ^[70]

65. In Alphaone, the Federal Court summarised the law as follows:
    

“Where the exercise of a statutory power attracts the requirement for procedural fairness a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the know material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.” ^[71]

64. Similarly in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah,^[72] Gleeson CJ and Hayne J held that even in a case where an application may be made to a judicial decision-maker and curial standards of procedural fairness apply to the fullest extent, “fairness does not require a judicial officer to make a running commentary upon an applicant’s prospects of success, so that there is a forewarning of all possible reasons for failure.” To adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.^[73]
    
65. Notably all of these formulations of principle have required of decision-makers either that they raise with an applicant the relevant issues or to explicitly provide to the applicant an opportunity to make submissions. All decisions have proceeded on the basis of the applicant participating actively in the proceedings. The Appellant in this matter never provided a reason for his non-attendance before the Tribunal and, in spite of ample opportunity to do so, never argued before receiving the adverse decision that he should receive the benefit of a rescheduled hearing.
    
66. Ms Melis for the Appellant adduced no authority for extending the principle of procedural fairness to an obligation to adjourn a proceeding which an applicant had not attended as an incident of procedural fairness in order to extend to him or her a further opportunity to attend to answer questions or make submissions upon relevant issues. The cases upon which she relied focused upon the entitlement of an applicant to be given an opportunity to give evidence or make submissions where there was the potential for the Tribunal’s reasoning to depart from the issues which had been found significant in an adverse decision by the Secretary.
    
67. To import such a novel incident of natural justice is not just without precedent but it would be problematic by reference to the operation of s 41(1) of the Act, which explicitly entitles the Tribunal to proceed in the absence of an applicant, and does not incorporate a special exception for when matters which may be of consequence to the outcome of a hearing could usefully be traversed with the applicant or by receipt of submissions.
    
68. In these circumstances, the Court does not accept the position contended for by the Appellant. Procedural fairness did not require the rescheduling of proceedings in the circumstances presented by this case, in spite of the fact that the reasoning by the Tribunal and that of the Secretary bore significant dissimilarities. It was a course that was open to the Tribunal but the failure by the Tribunal to do so did not constitute an error of law.
    
66. Under s 44(1) of the Act, I make an order affirming the decision of the Tribunal.
    

-------------------------------------------

Justice Ian Freckelton
Dated this 22^nd day of March 2018

p>^[1]Book of Documents (“BD”) 211.^[2]BD 221-222.
^[3]BD 222.
^[4]BD 225-226.
^[5]BD 227.
^[6]Ibid.
^[7]BD 229.
^[8]BD 231-251,
^[9]BD 253.
^[10]BD 255.
^[11]BD 73.
^[12]BD 74.
^[13]Ibid.
^[14]BD 76-77.
^[15]BD 77.
^[16]BD 76.
^[17]Ibid.
^[18]Ibid.
^[19]BD 78.
^[20]Ibid.
^[21]BD 79.
^[22]BD 281 at [104].
^[23]BD 214 at [18].
^[24]Ibid at [19].
^[25]BD 215 at [21].
^[26]Ibid at [22].
^[27]BD 216 at [26].
^[28]Ibid at [27].
^[29]Ibid at [30].
^[30]Ibid.
^[31]BD 217 at [33]-[34].
^[32]BD 218 at [38].
^[33]Ibid at [39]-[40].
^[34]BD 278 at [88].
^[35]BD 279 at [93].
^[36]Ibid at [94].
^[37]Ibid at [95].
^[38]BD 280 at [97].
^[39]BD 281 at [104]
^[40]Ibid at [105]-[113].
^[41]Ibid at [111].
^[42]BD 282 at [112].
^[43]Ibid at [113].
^[44]Ibid at [116]-[119].
^[45]Ibid at [114].
^[46]BD 283 at [120]-[122].
^[47]Ibid at [123].
^[48]BD 284 at [127].
^[49]Ibid at [128].
^[50]BD 285 at [135].
^[51]BD 284 at [127].
^[52] [2006] HCA 63; (2006) 228 CLR 152 at [35].
^[53] [2006] HCA 63; (2006) 228 CLR 152 at [47].
^[54]Submissions for the Appellant at [44].
^[55][1985] HCA 81; (1985) 159 CLR 550, 585 at [35].
^[56]Citing Sullivan v Department of Transport [1978] FCA 48; (1971) 20 ALR 323, 343 (per Deane J).
^[57](1994) 49 FCR 576, 591-592.
^[58]BD 71—79.

^[59]See eg Deiye v Republic [2015] NRSC 5 at [23] per Khan J, adopting the reasoning of Mason P in DPP v Shirvanian (1998) 44 NSWLR 129 at 134-135.

^[60]Kioa v West [1985] HCA 81; (1985) 159 CLR 550; Mobil Oil Australia Pty Ltd v Commissioner of Taxation (Cth) [1963] HCA 41; (1963) 113 CLR 475, 504 (Kitto J); R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, 552-553.

^[61]SZBEL v Minister for Immigration and MulticulturaL and indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [26].
^[62]Annetts v McCann (1990) 170 CLR 596 at 604; Kioa v West [1985] HCA 81; (1985) 159 CLR 550.

^[63]Re Minister for Immigration and Multicultural Affairs; Ex perte Miah [2001] HCA; (2001) 206 CLR 57, [191].
^[64]Kioa v West [1985] HCA 81; (1985) 159 CLR 550.

^[65]Re Minister for Immigration and Multicultural Affairs; Ex perte Miah [2001] HCA; (2001) 206 CLR 57, [31] (Gleeson CJ and Hayne J).

^[66]Sinnathamby v Minister of Immigration and Ethnic Affairs (1986) 66 ALR 502, 506 (Fox J; Ansett Transport Industries Ltd v Minister for Aviation (1987) 72 ALR 469, 499 (Lockhart J).
^[67] [1975] AC 295 at 369.

^[68]Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 at 591.

^[69]Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389; (1991) 31 FCR 100 at 108-109.
^[70]Ibid at 359.
^[71]Ibid at 592.
^[72][2001] HCA; (2001) 206 CLR 57 at [31].

^[73]SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [48].