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Kneebone, Susan --- "Natural Justice and Non-Citizens: A Matter of Integrity?" [2002] MelbULawRw 19; (2002) 26(2) Melbourne University Law Review 355

[*] LLB (Adel), MA (Hong Kong), Dip Ed (Melb), PhD (Monash); Barrister and Solicitor of the Supreme Courts of South Australia and Victoria; Associate Professor, Monash University. I would like to thank Jamie Walvisch for the invaluable research assistance he provided in the preparation of this article, and Peter Cane, David Mullan, Sue McNicol and Matt Harvey for their helpful comments on earlier drafts of the paper. I would also like to thank the anonymous referees for some useful comments. However, I am responsible for any errors or misconceptions.

[1] Eg the presumption of innocence in criminal law: Ronald Dworkin, A Matter of Principle (1985) 72.

[2] The right to participate in a democratic society is often held up as a generalised instance of natural justice: Dennis Galligan, ‘Procedural Fairness’ in Peter Birks (ed), The Frontiers of Liability (1994) vol 1, ch 10.

[3] See, eg, International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171, arts 10, 14 and 26 (entered into force 23 March 1976) (‘ICCPR’); Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222, arts 6, 14 (entered into force 3 September 1953); Universal Declaration of Human Rights, GA Res 217A, 3rd sess, 183rd plen mtg, arts 7, 10, UN Doc A/Res/217A (1948). In Johnson v Johnson [2000] HCA 48 (Unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 7 September 2000) Kirby J refers to the presence of the standard in international instruments as evidence of its universal character: at [40]. Cf R A Macdonald, ‘Judicial Review and Procedural Fairness in Administrative Law’ (Pt 1) (1980) 25 McGill Law Journal 520. It has been suggested that the right to seek review of an administrative decision on the ground of natural justice is a developing human right: A W Bradley, ‘Administrative Justice: A Developing Human Right?’ (1995) 1 European Public Law 347.

[4] D J Hewitt, Natural Justice (1972) 2–9.

[5] In recent decisions the High Court has not endorsed the common law presumptive implication approach which was accepted while Sir Anthony Mason was on the bench. As Mason J said in Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 (‘Kioa’): ‘The law has now developed to a point where it may be accepted there is a common law duty to act fairly ... subject only to the clear manifestation of a contrary statutory intention.’ Instead, the current High Court tends toward the statutory interpretation approach propounded by Brennan J in Kioa: at 609. See, eg, Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 176 ALR 219, 230–1 (Gaudron and Gummow JJ), 264–5 (Hayne J). In Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, the High Court by a majority decided that the ‘substantial justice’ provision in s 420(2)(b) of the Migration Act 1958 (Cth) did not incorporate the natural justice principle.

[6] See, eg, Migration Legislation Amendment (Procedural Fairness) Bill 2002 (Cth), which is intended to overturn the effect of Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2000) 179 ALR 238 and to provide that the Migration Act 1958 (Cth) contains complete ‘codes of procedure’: Migration Act 1958 (Cth) s 91V, as amended by the Migration Legislation Amendment Act (No 6) 2001 (Cth), which allows adverse credibility inferences to be drawn from demeanor. The validity of the previous pt 8 of the Migration Act 1958 (Cth), which removed natural justice as a ground of review in the Federal Court, was upheld by the High Court in Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510. It is unclear whether denial of natural justice will be recognised as a jurisdictional error for the purpose of the new privative clause regime introduced by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth).

[7] For a critical analysis of these processes, see Senate Legal and Constitutional References Committee, Parliament of Australia, A Sanctuary under Review: An Examination of Australia’s Refugee and Humanitarian Processes (2000) chs 4, 5.

[8] That is, satisfaction of the ‘real chance of persecution’ test. In Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 it was established that this involves a two-part test: objective and subjective fear of persecution.

[9] That is, the risk of being returned to the country of origin or other place of persecution: see Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150, art 33 (entered into force 22 April 1954) (‘Refugees Convention’).

[10] [1999] HCA 21; (1999) 197 CLR 611.

[11] [1985] 1 SCR 177 (‘Singh’).

[12] Zhang v Minister for Immigration Local Government and Ethnic Affairs [1993] FCA 489; (1993) 45 FCR 384 (‘Zhang’) and the subsequent appeal discussed in Part IV(A) below.

[13] Philip Ruddock (Minister for Immigration), ‘Australia’s Border Integrity Strengthened by New Legislation’ (Press Release, 26 September 2001).

[14] See, eg, Ronald Dworkin, Law’s Empire (1986) 225.

[15] This is illustrated by the majority and minority judgments in the Full Federal Court decision in Minister for Immigration and Ethnic Affairs v Eshetu [1997] FCA 603; (1997) 71 FCR 300, discussed in Susan Kneebone, ‘What Is the Basis of Judicial Review?’ (2001) 12 Public Law Review 95, 105–6.

[16] R v The Chancellor, Masters and Scholars of the University of Cambridge (1723) 1 Str 557, 567; 93 ER 698, 704 citing the example of Adam and Eve in the Garden of Paradise.

[17] Peter Cane, ‘Mapping the Frontiers’ in Peter Birks (ed), The Frontiers of Liability (1994) vol 1, 137, 146.

[18] Eg, Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648.

[19] Eg, Kioa [1985] HCA 81; (1985) 159 CLR 550, 585 (Mason J), 601 (Wilson J).

[20] John Rawls, A Theory of Justice (revised ed, 1999) 73–8.

[21] Kioa [1985] HCA 81; (1985) 159 CLR 550. This proposition applies irrespective of whether one starts with the common law presumptive implication principle of Mason J or the statutory interpretation approach of Brennan J. See above n 5.

[22] Eg Kioa [1985] HCA 81; (1985) 159 CLR 550; Heshmati v Minister for Immigration Local Government and Ethnic Affairs [1991] FCA 387; (1991) 31 FCR 123; Somaghi v Minister for Immigration Local Government and Ethnic Affairs [1991] FCA 389; (1991) 31 FCR 100. Cf Simsek v Macphee (1982) 148 CLR 636; Salemi v MacKellar [No 2] [1977] HCA 26; (1977) 137 CLR 396.

[23] Wu Yu Fang v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 583, discussed in Kneebone, above n 15, 105.

[24] This defines liberal justice in terms of the application of community standards. It can thus lead to exclusion of non-members of the community. See Catherine Dauvergne, ‘Beyond Justice: The Consequences of Liberalism for Immigration Law’ (1997) 10 Canadian Journal of Law and Jurisprudence 323.

[25] See Gerry Maher, ‘Natural Justice as Fairness’ in Neil MacCormick and Peter Birks (eds), The Legal Mind: Essays for Tony Honoré (1986) ch 6.

[26] Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11 (‘Charter’).

[27] RSC 1985, app III.

[28] At the time, the legislation provided under s 70(2) that assuming the claim is rejected by the Minister, the claimant must submit the transcript of the examination, the basis of the application, the facts upon which they rely, and the evidence they intend to present at a redetermination hearing, as well as anything else they deem relevant. If there are grounds, a quasi-judicial hearing, requiring full natural justice would be required under s 71(2) — but such a hearing will only take place if it ‘is more likely than not’ that the applicant will be able to establish his or her claim: Lugano v Minister of Manpower and Immigration [1976] 2 FC 438, 443 (Urie J) cited in Kwiatkowsky v MEI [1982] 2 SCR 856, 864 (Wilson J).

[29] RSC 1970 (2nd Supp), c 10.

[30] Kwiatkowsky v MEI [1982] 2 SCR 856; Julius Grey, ‘Comment on Singh v Minister of Employment and Immigration(1986) 31 McGill Law Journal 496.

[31] Christopher Wydrzynski, ‘Notes of Cases’ (1986) 64 Canadian Bar Review 172–83.

[32] The Supreme Court of Canada was in fact equally split in its approach to the issue. The expression ‘majority’ is used because this group included Dickson CJ, who held the casting vote.

[33] RSC 1985, app III.

[34] Note that this strategy is encouraged and indeed mandated by s 1 of the Charter, which is discussed in the text below.

[35] Singh [1985] 1 SCR 177, 189–93.

[36] This right applies to those ‘lawfully in Canada’ — which could have been a problem, if such persons were subject to deportation orders — but this was overcome by the discretion to issue a Minister’s permit under s 37. Moreover, Convention refugees are entitled to require the Minister to exercise his or her discretion to give a permit under s 37 fairly and in accordance with proper principles, and may have a right to take proceedings if there is a failure to do so. See Singh [1985] 1 SCR 177, 192.

[37] Singh [1985] 1 SCR 177, 207.

[38] Immigration Act, 1976–77, RSC 1985, c I-2, ss 70(3)(b), (2), (4).

[39] Singh [1985] 1 SCR 177, 195.

[40] [1953] 2 SCR 140, 154.

[41] Singh [1985] 1 SCR 177, 200. Note that the minority also used this quote: at 233.

[42] Ibid 202.

[43] Ibid 207.

[44] Ibid 207–8.

[45] Ibid 210.

[46] Ibid 213.

[47] Ibid 214.

[48] Ibid.

[49] Ibid.

[50] Ibid 215.

[51] Ibid 215–16.

[52] But note that the reverse use of s 1 is currently being advocated in Canada to reduce the rights available to non-citizens: see Tom Kent, Immigration Now: How to Regain Control and Use It Well (2001) Queen’s University School of Policy Studies <http://policy.queensu.ca/spspi/docs/

tk0901.shtml> at 1 July 2002.

[53] Singh [1985] 1 SCR 177, 218 (emphasis added).

[54] Ibid 219.

[55] Under Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, s 26, the guarantee of certain rights and freedoms is not to be construed as denying the existence of any other rights or freedoms that exist in Canada. The minority thought that by using the Canadian Bill of Rights they would bolster that protection — as existing rights would be lost if it was ignored. Since s 2(e) of the Canadian Bill of Rights is tailor-made for this situation, they preferred to rely on that section: Singh [1985] 1 SCR 177, 223–4.

[56] [1985] 1 SCR 177, 229.

[57] Ibid 218–20.

[58] Grey, above n 30, 499.

[59] Nurjehan Mawani, Convention Refugee Determination: What It Is and How It Works (1999) Immigration and Refugee Board of Canada <http://www.irb.gc.ca/crdd/wiihiw/index%5Fe.stm> at 1 July 2002.

[60] [1985] 2 SCR 486, 512 (‘Motor Vehicle Reference Case’). See also Wilson J at 523:

Section 7 does not, however, affirm a right to the principles of fundamental justice per se. There must first be found an impairment of the right to life, liberty or security of the person. It must then be determined whether that impairment has been effected in accordance with the principles of fundamental justice.

[61] Beare v The Queen [1987] 4 WWR 309, 317 (Bayda CJS).

[62] [1985] 2 SCR 486, 512.

[63] See MEI v Chiarelli [1992] 1 SCR 711; Baker v Canada (Minister for Employment and Immigration) [1999] 2 SCR 817.

[64] The Immigration and Refugee Protection Act, SC 2001, c 27, which came into force on 28 June 2002, replaces the Immigration Act 1976–77, RSC 1985, c I-2. It modifies some of the features of the current Refugee Board but it still provides a higher threshold than the Australian equivalent.

[65] The Immigration and Refugee Protection Act, SC 2001, c 27, strengthens this by incorporating other international obligations such as those arising under the ICCPR into the Act.

[66] Section 36(2).

[67] This is achieved through a combined reading of ss 36(2) and 65 of the Act. Section 65 makes the ‘satisfaction’ of the Minister an overriding consideration for the grant of a visa. See, eg, Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, 647 (Gummow J).

[68] Migration Act 1958 (Cth) s 65.

[69] Migration Act 1958 (Cth) pt 7.

[70] [1993] FCA 489; (1993) 45 FCR 384.

[71] [1994] FCA 985; (1994) 48 FCR 591.

[72] See, eg, Annetts v McCann (1990) 170 CLR 596.

[73] At that time, the standard procedure required the Refugee Status Review Committee, a non-statutory body, to review an applicant’s case and forward its recommendation to the delegate of the Minister deciding the appeal. Mr Zhang’s case, however, went directly to the delegate.

[74] Zhang [1993] FCA 489; (1993) 45 FCR 384, 388.

[75] Ibid 385.

[76] Evidence was given of an increase in numbers of refugee applicants from 397 in 1989 to 12 809 in 1991. This was consistent with a global trend at that time. Note that in the recent High Court decision Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 (Unreported, Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ, 11 April 2002), it was recognised that the scope of obligations under the Refugees Convention cannot be determined by the number applying for protection: see at [33] (Gleeson CJ), [82] (McHugh and Gummow JJ).

[77] [1993] FCA 489; (1993) 45 FCR 384, 407.

[78] Ibid 410.

[79] Ibid 409. His Honour made four references to the ‘private interests’ involved.

[80] Ibid 410.

[81] Ibid 407.

[82] Ibid 408. See also Chen [1994] FCA 985; (1994) 48 FCR 591, 599.

[83] [1994] FCA 985; (1994) 48 FCR 591.

[84] Ibid 602.

[85] Ibid 599.

[86] Wu Yu Fang v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 583, discussed in Robert Lindsay, ‘The Australian Janus: The Face of the Refugee Convention or the Unacceptable Face of the Migration Act?’ [1997] AIAdminLawF 9; (1997) 13 AIAL Forum 33.

[87] Dworkin, Law’s Empire, above n 14, chs 6, 7.

[88] Ibid 243.

[89] Ibid 226.

[90] Cf the critique of T R S Allan, ‘Justice and Fairness in Law’s Empire’ (1993) 52 Cambridge Law Journal 64.

[91] Dworkin, Law’s Empire, above n 14, 225.

[92] Ronald Dworkin, Taking Rights Seriously (1977) 22.

[93] Dworkin, Law’s Empire, above n 14, 176.

[94] See also Dworkin, Taking Rights Seriously, above n 92.

[95] Dworkin, A Matter of Principle, above n 1, ch 3.

[96] Ibid 80. Cf T R S Allan, ‘Procedural Fairness and the Duty of Respect’ (1998) 18 Oxford Journal of Legal Studies 497, 512–13, who argues that the concept only has meaning in relation to criminal proceedings.

[97] Dworkin, A Matter of Principle, above n 1, 79. Eg denying a person the right to test their innocence in a criminal trial.

[98] This is his idea of ‘egalitarian utilitarianism’: see Stephen Guest, Ronald Dworkin (1992)

230–6.

[99] Dworkin, Law’s Empire, above n 14, 179, 184.

[100] Dworkin, A Matter of Principle, above n 1, 77.

[101] Ibid.

[102] H L A Hart, The Concept of Law (1961) 153–9.

[103] Ibid 155. See also the majority in Singh [1985] 1 SCR 177, 197.

[104] Hart, above n 102, 156. In response to this argument, Galligan cites Franz Kafka, The Trial (1968): Dennis Galligan, Due Process and Fair Procedures: A Study of Administrative Procedures (1996) 21.

[105] Lon Fuller, ‘The Forms and Limits of Adjudication’ (1978) 92 Harvard Law Review 353, 373; see generally, Charles Covell, The Defence of Natural Law: A Study of the Ideas of Law and Justice in the Writings of Lon L Fuller, Michael Oakeshot, F A Hayek, Ronald Dworkin and John Finnis (1992) ch 2 discussing in particular Lon Fuller, The Morality of Law (1964).

[106] See Allan, ‘Procedural Fairness and the Duty of Respect’, above n 96, 504.

[107] Lon Fuller, The Morality of Law (revised ed, 1969) 210 cited in Covell, above n 105, 51.

[108] Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (1983) 31.

[109] Guest, above n 98, chs 3, 9.

[110] Ibid 232.

[111] As Dauvergne has argued, his views are in the same ‘communitarian liberal’ tradition as Rawls’ and Walzer’s: Catherine Dauvergne, ‘Amorality and Humanitarianism in Immigration Law’ (1999) 37 Osgoode Hall Law Journal 597, 599–601.

[112] Dworkin, Law’s Empire, above n 14, 209.

[113] See Allan, ‘Justice and Fairness in Law’s Empire’, above n 90, 64.

[114] Dworkin, Law’s Empire, above n 14, 188.

[115] Guest, above n 98, 100.

[116] Note his critique of Bushell v Secretary of State for the Environment [1980] UKHL 1; [1981] AC 75 in Dworkin, A Matter of Principle, above n 1, 98.

[117] See Galligan’s critique of Hart with regard to discretionary powers: Dennis Galligan, Discretionary Powers: A Legal Study of Official Discretion (1986) 57–61.

[118] Galligan describes law as ‘a system of regulation occurring within social relationships’: Galligan, Due Process and Fair Procedures, above n 104, 141.

[119] Galligan, Discretionary Powers, above n 117, ch 7.

[120] In this respect, Galligan’s view is very close to the doctrine of due process in the US. See Galligan, Due Process and Fair Procedures, above n 104, ch 6.

[121] Ibid 5.

[122] Ibid 7.

[123] Ibid 7–8.

[124] Ibid 35.

[125] Ibid 78.

[126] Ibid 62.

[127] Ibid 52.

[128] Ibid 5, 54–6.

[129] Discussed below in Part VI(A).

[130] Eg Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.

[131] Galligan, Due Process and Fair Procedures, above n 104, 128.

[132] Michael Bayles, Procedural Justice: Allocating to Individuals (1990) 139.

[133] Galligan, Due Process and Fair Procedures, above n 104, 129.

[134] Ibid.

[135] Eg Salemi v MacKellar [No 2] [1977] HCA 26; (1977) 137 CLR 396.

[136] Galligan, Due Process and Fair Procedures, above n 104, 128.

[137] Ibid 132.

[138] Ibid 134–5.

[139] Ibid 143.

[140] Ibid 140.

[141] (1987) 163 CLR 378.

[142] Galligan, Due Process and Fair Procedures, above n 104, 141. In that case it was decided that a prisoner (O’Shea) had no legitimate expectation arising from a recommendation of a Parole Board that he be released on licence, when the final decision was made by the Governor in Council acting on the advice of Cabinet. A second reason was that O’Shea had already had an adequate hearing before the Board.

[143] Galligan, Due Process and Fair Procedures, above n 104, 140.

[144] [1985] HCA 81; (1985) 159 CLR 550, 619.

[145] Galligan, Due Process and Fair Procedures, above n 104, 76.

[146] Again note the similarity between Galligan’s view and the doctrine in the US where representation and participation are depicted as process values: see ibid 206.

[147] Ibid 75.

[148] Kim Rubenstein argues that, in Australia, citizenship is a matter of inference rather than an express constitutional concept: ‘Citizenship and the Constitutional Convention Debates: A Mere Legal Inference’ (1995) 25 Federal Law Review 295.

[149] Allan, ‘Procedural Fairness and the Duty of Respect’, above n 96, 499–507.

[150] Ibid 512.

[151] Cf Donald Galloway, ‘Liberalism, Globalism, and Immigration’ (1993) 18 Queens Law Journal 266, who argues that liberal theory can explain when to intervene to protect refugees and that a balance has to be achieved between altruism and self-interest to accommodate the rights of refugees. He coins the expression ‘the self-help state’ to explain the moral obligation to render assistance. Dauvergne is critical of this view on the basis that it perpetuates a ‘them’ and ‘us’ mentality which falls foul of liberal theory as it is not based upon equality: Dauvergne, ‘Beyond Justice: The Consequences of Liberalism for Immigration Law’, above n 24, 332.

[152] Robert Sharpe, ‘The Impact of a Bill of Rights on the Role of the Judiciary: A Canadian Perspective’ in Philip Alston (ed), Promoting Human Rights through Bills of Rights: Comparative Perspectives (1999) 431.