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BY AARON MOSS

On 4 November 2015, the High Court of Australia delivered judgment in Minister for Immigration and Border Protection v WZARH (‘WZARH’), dismissing an appeal from the Full Court of the Federal Court of Australia’s holding that that the Independent Merits Review of the applicant’s refugee status determination was vitiated by a denial of procedural fairness. WZARH provides some much-needed assistance in applying ‘legitimate expectations’ in Australian administrative law.

‘Legitimate expectations’ in Australian administrative law

As Kiefel, Bell and Keane JJ outlined in WZARH, the concept of legitimate expectations has been described as ‘apt to mislead’, ‘unsatisfactory’, ‘superfluous and confusing’. Previously, such criticisms culminated in the High Court’s 2012 decision of Plaintiff S10/2011 v Minister for Immigration and Citizenship, where Gummow, Hayne, Crennan and Bell JJ stated that ‘the phrase “legitimate expectations” when used in the field of public law either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded’.

Despite this confusion, the concept has played two major roles over time.

First, following Mason J’s decision in Kioa v West, the concept of ‘legitimate expectations’ has impacted the ‘threshold question’ of to whom procedural fairness is owed. The concept clarifies that decision-makers must afford procedural fairness to those whose rights, interests or legitimate expectations may be affected by a decision.

Secondly, legitimate expectations may assist in determining the content of that obligation – namely, what the decision-maker must do in the circumstances to ensure a procedurally ‘fair’ decision.

Unlike in the United Kingdom, Canada and Singapore, where the doctrine of ‘legitimate expectations’ has developed to be more substantive; Australian decision-makers need not satisfy the individual’s ‘legitimate expectation’, but merely afford appropriate procedural protections if they wish to depart from it.

Legitimate expectations found favour in the High Court’s 1995 judgment in Minister of Immigration and Ethnic Affairs v Teoh, holding that Australia’s ratification of the Convention on the Rights of the Child gave a father facing deportation a ‘legitimate expectation’ that the administrator would treat the best interests of his children as a ‘primary consideration’. Where this did not occur, the Court held that denying Mr Teoh an opportunity to argue why this should be the case demonstrated error.

In Re Minister for Immigration, Multicultural and Indigenous Affairs; ex parte Lam (‘Lam’), the High Court explicitly doubted Teoh’s correctness, and questioned the ongoing utility of the concept in Australian administrative law. As Hayne J identified, this was in part due to uncertainties surrounding:

  • how an ‘expectation’ is created;
  • which expectations are ‘legitimate’;
  • what those expectations may encompass;
  • whose expectations are relevant; and
  • whether the standard is objective or subjective.

Beyond the approach adopted in Teoh, and thrown into doubt after Lam, legitimate expectations are intimately related to procedural fairness more broadly. Once it is established that an individual must afford procedural fairness, how that manifests in the particular circumstance depends upon a sliding scale of fact and degree. Gageler J recently described the doctrine as enjoying a ‘flexible, chameleon-like, content capable of varying according to the exigencies of the exercise of power between nothingness at one extreme and a full-blown trial at the other’. Generally, where a decision’s consequences increase in importance or severity, procedural fairness rules require the decision-maker take greater efforts to ensure a fair and transparent decision-making process. In the context of legitimate expectations, where an administrator intends to depart from an expectation, the notice and hearing procedures which must be adopted increase in onerousness where the consequences of departure are more significant. An administrator’s failure to comply with these requirements constitutes a denial of procedural fairness amounting to jurisdictional error, and therefore supportive of an application for judicial review.

WZARH’s ‘legitimate expectation’

Applicant WZARH was a Sri Lankan Tamil who arrived by boat on Christmas Island as an ‘offshore entry person’ within the definition of s 14 of the Migration Act 1958 (Cth), and was thus detained. WZARH requested the Minister exercise his discretion under s 46A of the Migration Act to allow him to make a valid application for a Protection (Class XA) Visa, arguing that he was a person to whom Australia owed protection obligations under the Refugee Convention. He submitted that he had a well-founded fear of persecution at the hands of the Eelam People’s Democratic Party and Sri Lankan authorities due to his Tamil ethnicity, perceived support for the Liberation Tigers of Tamil Eelam and various political activities.

Following the Ministerial delegate’s adverse decision, WZARH requested an Independent Merits Review, and attended an oral interview with the Reviewer, who advised that she would undertake a ‘fresh re-hearing’ of the Applicant’s claim to refugee status. Subsequently, for undisclosed reasons, and without notice to the Applicant, this interviewer was substituted for a second person. This Second Interviewer completed the review process, and recommended (on the basis of adverse credibility findings and evidentiary inconsistencies) that the Minister find WZARH had no ‘well-founded’ fear of persecution. The Second Interviewer’s recommendation was based upon written materials as well as an audio recording and written transcript of the interview. No opportunity was provided to make further submissions.

In the Federal Circuit Court, Judge Raphael rejected the Applicant’s submission that the second individual’s failure to interview WZARH personally amounted to a denial of procedural fairness, holding that ‘there is no absolute right to a second hearing in circumstances such as this’ as ‘this is not a case that a matter is considered solely on the papers. There had been a hearing. The second respondent had heard the tape of that hearing and read the transcript’.

The Applicant appealed this decision to the Full Federal Court, all of whom allowed this appeal. Nicholas J held that the Second Interviewer’s failure to advise the Applicant of the change in reviewer amounted to a denial of procedural fairness, as it deprived him of an opportunity to make submissions as to how the process should continue. This failure removed the ability for the Second Interviewer to observe personally the Applicant’s demeanour and other non-verbal matters affecting his credibility, and therefore jeopardised the ability to convince the Second Interviewer as to the authenticity of his claims.

Flick and Gleeson JJ reached a similar conclusion, on the basis that the Applicant possessed a ‘legitimate expectation’ that either the First Interviewer would make the ultimate recommendation, or that the person who did would meet with the Applicant. For their Honours, the ‘fundamental change to the administrative process’ meant that ‘[WZARH] received a different and inferior review from the review that he had been led to expect would be conducted’, and therefore represented a denial of procedural fairness.

The Minister appealed to the High Court, arguing that Flick and Gleeson JJ’s invocation of the language of legitimate expectations demonstrated error. In any case, the Minister further submitted that no denial of procedural fairness existed, as there was no evidence that the process undertaken actually caused the Applicant any detriment. All five judges rejected these submissions.

Kiefel, Bell and Keane JJ found that the nature of the inquiry rendered credibility matters central to the review. In those circumstances, ‘[a]n interview by the Second Reviewer might have made a difference to the outcome’. Given the second interviewer’s could not perceive questions of credibility personally:

information available from the interview conducted by the First Reviewer was only partly reflected in the recommendation made to the Minister; and because the respondent was not told of the alteration of the review process, he was denied an opportunity to be heard as to how the changed process might be completed so that he would not be disadvantaged by the change.

Similarly, Gageler and Gordon JJ held that the change in reviewer altered the nature of the assessment process and denied the Applicant the ‘possibility of a successful outcome’, as it deprived him of the opportunity of tailoring his submissions to this process. Rejecting the Minister’s submissions regarding detriment, their Honours outlined that ‘what must be shown by a person seeking to establish a denial of procedural fairness will depend upon the precise defect alleged to have occurred’. Where, as here, an applicant is denied a ‘fair opportunity to be heard’, loss of the possibility of a better outcome sufficed to demonstrate a denial of procedural fairness. It need not be shown the decision would in fact have differed if an alternative course was adopted.

‘Legitimate expectations’ following WZARH

Strictly speaking, the Court’s endorsement of Nicholas J’s reasoning rendered any consideration of legitimate expectations merely obiter. However, the Court provides some much-needed guidance on the concept’s operation.

Most significantly, Kiefel, Bell and Keane JJ stated that:

The ‘legitimate expectation’ of a person affected by an administrative decision does not provide a basis for determining whether procedural fairness should be accorded to that person or for determining the content of such procedural fairness. It is sufficient to say that, in the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions.

In doing so, their Honours effectively reformulated Mason J’s ‘threshold question’ from Kioa v West, suggesting that a decision-maker is simply required to afford procedural fairness to ‘those affected by their decisions’. An individual’s legitimate expectation no longer appears capable of bringing a person within the category of individuals to whom procedural fairness must be shown. Although it is likely that this ‘affected person’ test will be interpreted by reference to the first two limbs of Mason J’s test from Kioa – requiring procedural fairness be owed to those whose ‘rights’ or ‘interests’ are likely to be affected – this simplification comes at the expense of analytical clarity. Uncertainty surrounds this assumption, the nature of the contrary statutory intention required, and any possible relationship of this test with the ‘person aggrieved’/’special interest’ standing inquiries.

Secondly, both judgments confirm that legitimate expectations play an ancillary, interpretive role in ascertaining the content of the procedural fairness obligation.

As outlined by Gageler and Gordon JJ, the primary question directs attention to ‘what opportunities/procedures ought a reasonable decision-maker fairly provide in the totality of these circumstances?’ Explicitly endorsing the reasons of Gleeson CJ in Lam, Kiefel, Bell and Keane JJ confirm that whether the failure to fulfil an individual’s legitimate expectation constitutes a denial of procedural fairness is assessed in the totality of the circumstances. The formation of this expectation is therefore not relevant in itself, but only insofar as a reasonable decision-maker ought fairly maintain it in the circumstances. Where this is the case, the rules of procedural fairness may expand the scope of the protections required (e.g. requiring an opportunity to make representations or call evidence as to why an expectation should be maintained).

As Shane Prince described in the Respondent’s oral submissions, legitimate expectations do not therefore operate as ‘some particular and independent rule of law’. This ‘re-articulation’ is similar to that undertaken by the Court regarding unjust enrichment, in the context of the law of restitution (see Equuscorp Pty Ltd v Haxton). Although not capable of direct invocation, both concepts play a ‘taxonomical’, ‘gap-filling’ role which assist in interpreting the legal nature and content of other substantive doctrines. The concept of ‘legitimate expectations’ therefore illustrates the ‘inherent flexibility … ascribed to the contents of procedural fairness over many years’.

Finally, Kiefel, Bell and Keane JJ provide some guidance as to when and how a particular expectation may arise, indirectly addressing many of Hayne J’s problems above. For their Honours, ‘[t]he manner in which any given administrative process is conducted may generate expectations on the part of the person affected as to how he or she should present his or her case’. As echoed by Gageler and Gordon JJ, ‘legitimate expectations’ may be created by the decision-maker’s conduct, where that conduct influences the tactical and evidentiary choices made by an individual. Expectations about outcome, and those deriving from the nature of the interest affected appear of little relevance.

Conclusion

WZARH represents the most recent in a long line of cases considering legitimate expectations in Australian law. Whilst not transforming the concept, the decision provides some useful guidance in properly understanding the concept, and serves as a useful reminder to treat carefully its application. However, applied properly, the concept remains a useful analytical tool in comprehending what procedural fairness may require in any particular circumstance.

Aaron Moss will graduate with a Bachelor of Arts/Bachelor of Laws (First Class Honours) from the University of Tasmania in December 2015.

*The author wishes to thank Associate Professor Rick Snell and Michael Olds for their encouragement in preparing this article, and Gabrielle Appleby for her editorial assistance.

Suggested citation: Aaron Moss, ‘Refashioning ‘legitimate expectations’ in Australian administrative law: Minister for Immigration and Border Protection v WZARH’ on AUSPUBLAW (8 December 2015) <https://auspublaw.org/2015/12/refashioning-legitimate-expectations/>