Procedural fairness (migration law)
Statutory definition
Section 57 of the Migration Act 1958 requires the Minister, before refusing a visa application, to give the applicant particulars of any information that the Minister considers would be the reason (or part of the reason) for refusing the application and invite comment. Sections 359A and 424A impose equivalent requirements on the ART in the migration and protection review jurisdictions. The statutory provisions codify, and in some respects limit, the common law natural justice rules.
Explanation
Procedural fairness obligations in migration law are largely statutory rather than common law. The Department must give applicants a s 57 notice if it proposes to rely on adverse information; the ART must give a s 359A or s 424A notice. Failure to comply with the statutory notice requirement can invalidate the decision — it is a jurisdictional error reviewable in the Federal Court. However, the statutory framework also limits common law natural justice rights: s 363A (migration review) and s 422B (protection review) provide that the common law rules of natural justice do not apply beyond the Act's own provisions.