Procedural fairness (natural justice)
Statutory definition
The Migration Act 1958 (Cth) contains specific procedural fairness provisions that displace the common law rules for certain decisions. Section 57 requires that an applicant be informed of relevant information that would be adverse to the outcome of a visa application and given a chance to comment. Sections 359A and 424A impose equivalent obligations on the Administrative Review Tribunal in exercise of its review functions.
Explanation
Procedural fairness in migration law is largely codified. The Act specifies, for different decision types, what information must be put to an applicant and how. A failure to comply with these mandatory provisions constitutes jurisdictional error, making the decision vulnerable to judicial review.
Key principles:
- The hearing rule — a person affected by a decision must be given an opportunity to present their case
- The bias rule — the decision-maker must not be biased (actual or apprehended)
- The information rule — adverse information relied on must be disclosed so the person can respond
The Act's procedural fairness provisions (ss 57, 359A, 424A) are exhaustive for visa and review applications — the common law right to procedural fairness is excluded for those decisions. However, common law procedural fairness applies to decisions not covered by the statutory scheme.
How this term is used
A breach of s 424A (failure to put adverse information to an ART applicant) is one of the most common grounds of successful judicial review in migration matters. The section requires the Tribunal to put information — not the Tribunal's reasoning — to the applicant.