Australia: Immigration: The High Court Retreats from a Rigid Application of Statutory Procedural Fairness Provisions

Government Insights
Last Updated: 19 April 2010
Article by John Carroll

In 2009, the High Court demonstrated a retreat from an overly rigid application of statutory procedural fairness provisions. More subtle considerations of the legislative scheme and context will be needed when considering the application of these provisions. There is more scope under this modified approach for producing workable and sensible outcomes.

In 2009, the High Court considered a range of appeals from the Federal Court on the application of statutory procedural fairness provisions in the Migration Act 1958 (Cth). Over the last few years, the High Court has emphasised the rigidity and inflexibility of statutory procedural fairness provisions when compared with common law requirements, and has interpreted and applied those provisions strictly. For example, in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294, the High Court held that any breach of the obligation in section 424A of the Migration Act, which requires certain information to be given by a decision-maker to an applicant in writing, would constitute a breach of an inviolable requirement and, thus, result in a jurisdictional error. Emphasising the inflexibility of the statutory requirements in contrast to the common law counterparts, Justice Gummow said "what might be called the 'common law' requirements of procedural fairness in a given case do not have the rigidity of the statutory imperatives of [the statutory disclosure provisions]".

The Federal Court has largely taken the hint and has sought to adopt the same approach. In 2009, however, the High Court demonstrated a retreat from an overly strict view of these provisions, instead opting for workable and sensible results. This article will consider three cases in which the High Court has rejected the narrower approach of the Federal Court, instead favouring a more relaxed interpretation and application of the Migration Act provisions.

Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627

In SZIZO, the appellants - husband, wife and four children - had been refused protection visas. When applying for review to the Refugee Review Tribunal, the husband nominated his eldest daughter - who was one of the applicants - to be his authorised recipient. Subsection441G provides that "the Tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant". However, despite the requirement in that provision, the Tribunal corresponded only with the applicant father about the hearing. The husband, wife and four children appeared before the Tribunal and the husband, wife and eldest daughter (who was also the authorised recipient) gave evidence.

The Full Court held that the breach of the requirement in section 441G constituted a jurisdictional error leading to invalidity. The Court considered that the provisions in the Migration Act purporting exhaustively to set out the procedural fairness rules suggested "that Parliament intended that there be strict adherence to each of the procedural steps leading up to the hearing". This result was reached despite the fact that there had been no unfairness or prejudice to the appellants and there would not have been a contravention common law procedural fairness requirements. As in SAAP, there was a breach here of a statutory requirement and that breach resulted in invalidity.

The High Court rejected that conclusion. SAAP, it was said, was decided before the introduction of section 422B into the Migration Act, the provision making the Act an exclusive statement of the requirements of the natural justice hearing rule. The scope of section 424A would now have to be interpreted in light of section 422B.

The Court then drew a distinction between, on the one hand, core procedural fairness provisions and, on the other hand, provisions which are merely facilitative of a fair hearing. Section 441G fell into the second category: it is a procedural step that goes to the "manner" of giving notice. By contrast, section 424A(1) sets out the obligation to give particulars of adverse information and section 425 sets out the obligation to invite the applicant to give evidence and present arguments. These are both core procedural fairness provisions.

For the Court, as far as section 441G was concerned, while compliance with the statutory requirements might have been intended by Parliament to discharge the Tribunal's obligations, a failure to comply need not result in invalidity. Instead, a determination of invalidity requires a consideration of the "extent and consequences of the departure". The consequences here were not sufficient to give rise to invalidity: there was no injustice - the applicants received timely and effective notice of the hearing.

Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489

In SZKTI, the appellant had been refused a protection visa. During the course of review by the Refugee Review Tribunal, the appellant had provided the Tribunal with a letter from a local church elder with the mobile telephone number of one of the elders. The Tribunal telephoned the elder and questioned him about the appellant. The information provided during the telephone conversation formed part of the reason for the rejection of the appellant's claim for a protection visa.

Section 424(1) of the Migration Act 1958 (Cth) says that "[i]n conducting the review, the Tribunal may get any information that it considers relevant". Section424(2) says that "[w]ithout limiting subsection(1), the Tribunal may invite a person to give additional information". Section424(3) then says, essentially, that invitations under subsection(2) are to be in writing. The question for the Court was whether there was a breach of the requirement in section 424(3).

The Full Federal Court held that the Tribunal's telephone call to the elder of the local church constituted an invitation to him to give additional information. As such, the Tribunal was required to comply with the requirement in section 424(3), and failure to do so resulted in jurisdictional error.

The High Court on appeal disagreed with the Full Federal Court. The language of section 424(1) was broad enough, the Court thought, to allow the Tribunal to obtain information from a person by telephone. The inclusion of the words "[w]ithout limiting subsection(1)", that appear in section 424(2), meant that the restrictions on the power in section 424(2) were not to apply to the general power in section 424(1). That conclusion was "consonant with the inquisitorial nature of the RRT and the statutory obligation upon it to adopt procedures which are not only "fair [and] just" but are also 'economical, informal and quick'".

In reaching the contrary conclusion, the Full Federal Court had made much of the point that section 424 was a procedural fairness provision and should be read strictly to protect the applicant's interests. The High Court, however, said that procedural fairness was built into the system by requiring the Tribunal to give the applicant an opportunity to comment (section 424A), not by requiring the getting of information under section 424(1) to be in writing. Thus, there was no breach of the statutory requirements and no jurisdictional error that would attract relief.

The same construction of section 424 was applied in Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 where a Full Federal Court had held that there was a breach of section 424 because an employee of the Tribunal had made inquiries by telephone without a written invitation. On the High Court's construction, no such breach resulted.

Minister for Immigration and Citizenship v Kumar (2009) 238 CLR 448

In Kumar, the High Court considered the obligation of the Minister's delegate to disclose the details of an informant who had provided information adverse to a visa applicant. Similar issues had been considered by the High Court in VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, when dealing with the requirements at common law to disclose informant information. In Kumar, the question was what was required of the decision-maker under the statutory disclosure requirements.

Mr Kumar, a non-citizen, married an Australian citizen in Australia. Shortly thereafter, he applied for a Partner (Residence) (Class BS) visa and a Partner (Temporary) (Class UK) visa. Eligibility for each visa under the Migration Regulations 1994 relevantly turned on the applicant demonstrating that he was in a "married relationship" with his spouse. The Minister's delegate was not satisfied that the parties had a mutual commitment to a shared life or that the relationship between them was genuine and ongoing, and refused to grant the visas. During the Tribunal review proceedings, Mr Kumar was informed in writing that the Tribunal had received confidential information stating that his marriage was a sham. In upholding the delegate's decision, the Tribunal indicated that it relied on the confidential information.

Section 359A of the Migration Act requires the Tribunal to explain and invite comment on "particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". The requirement does not apply to, amongst other things, information that is "non-disclosable information", and "non-disclosable" information includes information or matter "whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence".

In deciding that there had been a breach of section 359A, the Full Federal Court considered that the information was not "non-disclosable". In reaching that conclusion, the Full Court was influenced by the position at general law that confidences are not protected in relation to the commission of crimes and fraud. Thus, to the extent that the information provided to the Tribunal revealed criminal or fraudulent activity, it would not be protected at general law by the doctrines protecting confidential information and, consequently, could not fall within the exclusion in section 359A from the general obligation of disclosure.

In allowing the appeal, the High Court cautioned against "the immediate translation into public law of such private law concepts". Provisions like section 359A in the Migration Act were, the Court said, designed to accommodate the competing objectives of affording applicants procedural fairness and providing protection for informants who assist decision-makers to make decisions under the Act. The Court referred to the decision in VEAL of 2002 as pointing to how the competing interests underlying section 359A should be accommodated. In VEAL, the Court held that common law requirements of procedural fairness did not require the Tribunal to give an applicant a copy of an informant's letter or provide the informant's name. The disclosure of that information would "give no significance to the public interest in the proper administration of the Act". Common law procedural fairness only required the Tribunal to tell the applicant "what was the substance of the allegations made in the letter and asking him to respond to those allegations".

With that in mind, the Court in Kumar considered that the fact that the informant may have provided information revealing the commission of offences "did not deny to the information and the identity of the informer the character of non-disclosable information within the meaning of" the provision. In conclusion, the Court said, the disclosure to Mr Kumar that the Tribunal had received information, in confidence, that his marriage was contrived for the purposes of migrating to Australia did not result in a breach of section 359A of the Act.

What do these cases tell us?

While the High Court had previously suggested a strict approach to the interpretation and application of statutory procedural fairness provisions, it seems that we are no longer to uncritically assume that these provisions are to be read narrowly to favour the individual concerned just because they are procedural fairness provisions. Procedural fairness may be built into the legislative scheme in different ways. The provisions might reflect accommodations between competing objectives. More subtle considerations of the legislative scheme and context will be needed, not just wholesale assumptions about rigidity, inflexibility and strictness of interpretation. As the cases demonstrate, there is more scope under this modified approach for producing workable and sensible outcomes.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.