“Procedural” decisions and procedural fairness

The High Court has confirmed that the making of a “procedural” decision to consider exercising a non-compellable discretion to either grant a visa or to permit a further application for a protection visa (which decision has the effect of prolonging the mandatory detention of those affected) gives rise to an obligation to accord procedural fairness.

Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29 

On 27 July 2016, the High Court upheld the Minister’s appeal in these proceedings arising from a “data breach” that compromised the identities of the respondents.


On 10 February 2014, the Department of Immigration and Border Protection accidentally disclosed on its website the identities of thousands of asylum seekers who had applied for protection visas.  The Department commissioned a report from KPMG, which concluded that the document had been accessed 123 times from 104 unique internet addresses.  An “abridged” version of the report, which did not identify the unique internet addresses, was made publicly available.

The Department began to conduct International Treaties Obligations Assessments (ITOAs). These are internal procedures that examine whether Australia has international law obligations not to return (or “refouler”) a particular person to a particular country.  They can inform decision-making under the Migration Act 1958 (Cth), but have no explicit basis in the Act.  As part of the ITOA process, affected persons were provided the abridged KPMG report and invited to make submissions.  They were told that the ITOAs would be conducted on the basis of the abridged report and on the assumption that their details “may have been accessed by the authorities in the receiving country”.

SZSSJ and SZTZI were two of the affected persons.  Each was an asylum seekers whose protection visa applications had been refused—but who had not yet been removed from Australia—when the data breach happened.  Each was statute-barred from making a further application for a protection visa and could only be granted a visa if the Minister exercised a non-compellable discretion under ss 48B, 195A or 417 to either grant a visa or to permit a further application.

Decision of the Full Court of the Federal Court: SZSSJ v Minister for Immigration and Border Protection (No 2) (2015) 234 FCR 1

SZSSJ and SZTZI both brought claims for declaratory and injunctive relief in respect of the ITOA process.  Each claimed to have been denied procedural fairness because they were not provided with the unabridged KPMG report as part of the ITOA process.  They relied on Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 (the Offshore Processing Case), in which the High Court held that a decision by the Minister to consider exercising a non-compellable discretion directly affected the rights and interests of the individuals concerned (by prolonging their detention), with the result that procedural fairness was owed in any steps taken to inform the Minister’s consideration.  The Minister relied upon Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, in which the Offshore Processing Case was distinguished on the basis that the Minister had not taken the “statutory step” of deciding to consider exercising his non-compellable discretion.

The Full Court made a key factual finding: that the ITOAs were being conducted pursuant to a decision of the Minister to consider a non-compellable exercise of power.  As a result, the case was governed by the Offshore Processing Case and natural justice applied.  The Court went on to find that procedural fairness was being denied because SZTZI and SZSSJ were not told anything about the decision-making process; further, because they were not provided with the unabridged KPMG report.  In this respect, the Full Court saw it as “inevitable that the decision-maker must show its full hand” given the decision-making process was necessitated by its own failure to adhere to statutory safeguards, meaning that it was “conflicted in its role in assessing what the non-refoulement obligations are which arise from its own wrongful conduct”.  The failure to provide the unabridged report was not ameliorated by the “assumption” that the information in question “may” have been accessed by the authorities in the receiving country, because it would remain for the affected person to “show that the information was accessed and by whom and why access by those people poses such a significant risk”.

High Court decision

The High Court identified three principles from the Offshore Processing Case and S10.

  • The exercise of the non-compellable powers in question involves “two distinct decisions: a procedural decision, to consider whether to make a substantive decision; and a substantive decision”.
  • The procedural decision provides a statutory basis for “processes undertaken by the Department” to inform consideration of whether to make the substantive decision, thereby subjecting those processes to an “implied statutory requirement to afford procedural fairness where the process has the effect of prolonging immigration detention”.
  • Whether the Minister has made the procedural decision is a question of fact.

The High Court thus agreed with the Full Court’s view that natural justice applied.  However, it reached a very different view about what that entailed.  In particular, “the nature and purpose of the assessment and of the issues to be considered” had been adequately explained because SZSSJ and SZTZI were told that an ITOA would be conducted in accordance with the Department’s Procedures Advice Manual, which in turn explained that this might result in the exercise of certain non-compellable discretions.

Moreover, the data breach, although “extraordinary”, did not warrant a departure from the “ordinary” requirements of natural justice:

Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person. Ordinarily, there is no requirement that the person be notified of information which is in the possession of, or accessible to, the repository but which the repository has chosen not to take into account at all in the conduct of the inquiry. (Footnote omitted).

Finally, the High Court took a very different view of the “assumption” that the information in question “may” have been accessed by the authorities in the receiving country.  It viewed this as, in effect, a worst-case assumption that the information had been accessed by, or passed to, the very authorities from whom harm was feared.  The unabridged KPMG report could therefore take matters no further.

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