Minister for Immigration and Border Protection v WZARH [2015] HCA 40

In a judgment handed down today (4 November 2015), Minister for Immigration and Border Protection v WZARH [2015] HCA 40, the High Court dismissed an appeal from the Full Federal Court and ruled in favour of the respondent. The High Court unanimously found that an asylum seeker subject to independent merits review of his refugee status was denied procedural fairness when he was not informed of a change in the reviewer assessing his status.

Background to the Case

The respondent was of Sri Lankan nationality of Tamil ethnicity. He arrived in Australia in 2010 and requested a Refugee Status Assessment (RSA) in early 2011 to determine whether he was a person to which Australia owed protection obligations under the Refugee Convention. A delegate for the Department of Immigration found that the respondent did not fit the status and the respondent requested an Independent Merits Review to assess the RSA.

He was interviewed by an independent merits reviewer in early 2012. The reviewer informed the respondent that she would undertake a re-hearing of his claims and make recommendations to the Department accordingly. However, the reviewer became unavailable to complete the process and a second reviewer was appointed. The second reviewer did not conduct an interview with the respondent and instead relied on the material and interviews as collated by the first reviewer. The respondent was not informed of these changes. The second reviewer ultimately found against the respondent’s refugee status.

Appeal to the Federal Circuit Court

The respondent’s appeal was dismissed by the Federal Circuit Court. However, a later appeal to the Full Federal Court was successful. The court affirmed that the respondent had a legitimate expectation that his claims would be assessed by the person whom he had been interviewed by. The full court held that, as a result, the respondent was denied an opportunity to make submissions as to how the review should proceed.

High Court Appeal

The High Court unanimously agreed with the Full Federal Court. The Court held that procedural fairness required that the respondent be informed that the review process had changed so that he would be afforded the opportunity to be heard on the question of how the review should proceed. 

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Minister for Immigration and Border Protection v WZARH [2015] HCA 40