Procedural Fairness

Section 359A of the Migration Act is a statutory procedural fairness provision. It requires disclosure of any information that the Tribunal (ie the MRT) "would be the reason, or a part of the reason, for affirming the decision that is under review".

There has recently been a case before the High Court in which an application for a spouse visa was refused after DIAC received information from an informant that the relationship was not genuine and was only for "migration purposes". The identity of the informant and the precise content of the information were not disclosed to the visa applicant. Ultimately, the High Court said that information of that nature need not be disclosed. The Court relied on a previous decision in VEAL where it found:

"It is in aid of that important public interest that, so far as possible, there should be no impediment to the giving of information to authorities about claims that are made for visas. That public interest, and the need to accord procedural fairness to the appellant, could be accommodated. They were to be accommodated, in this case, by the Tribunal telling the appellant what was the substance of the allegations made in the letter and asking him to respond to those allegations."

I understand the need for confidence, but there is some room for debate on how much disclosure is required before the "substance" is known. This seems to me to be subjective and not necessarily fair at all.

You can read the whole case here: http://www.austlii.edu.au/au/cases/cth/HCA/2009/10.html