LAWS2201 Lecture Notes - Lecture 9: Temporary Protection Visa, Well-Founded Relation, Natural Justice
Legitimate expectations
WZARH: [confined the doctrine of legitimate expectation]
Facts
• The respondent is a national Sri Lanka of Tamil ethnicity. He entered Aus by boat arriving at
Xmas Island.
• Xmas Island was excided offshore place and the respondent was an offshore entry person as
s5(2) Migration Act
• Because he did not hold a visa, he was an unlawful non-citizen as defined in s14 of the Act, and
hence he was detained
• He was prevented from making a valid application for Protection visa because he was an
offshore entry person under S46a
• He requested for a Refugee Status Assessment as whether Aus owed protection obligations
to him under the Refugee Convention
• The respondent said he feared harm at the hands of the Ealam People's Demoratic party and the
Sri Lanka authorities because of his Tamil ethnicity, his perceived support for a Tamil political
party and having campaigned in Sri Lanka for a particular politician
• The assessment failed and the respondent requested an Independent Merits Review
• The 1st Reviewer told the respondent that she would undertake a fresh rehearing of his claim
and make a recommendation as to whether he is found to be a refugee, and that this will be
given to the Minister for consideration . She concluded the interview by telling the respondent
that she would consider all the info he has provided and any further articles or information, then
make her recommendatio
• Due to undisclosed reasons, a 2nd Reviewer assumed the responsibility of the IMR
• The 2nd Reviewer found the respondent did not meet the criteria for a protection visa.
• The second reviewer formed an adverse view of the credibility of the respondent, that his fear of
persecution was inconsistent with his account of activities in various election campaign in Sri
Lanka
• That the memory lapse or confusion was no accepted as reasons and that there is not a
real chance that the respondent would be persecuted, now or in reasonably foreseeable
future for reasons of political opinion , it was not well-founded
• The Full Court held the Second Reviewer breached the rules of procedural fairness.
• The Second review did not conduct an interview with the respondent, but based his decision on
submissions, applications, transcripts etc
Findings
• Flick and Gleeson JJ: no universal requirement for an oral hearing before an admin decision is
made
• Nicolas J held because the respondent was not told of the change in the identity of the decision
maker, he was denied an opportunity to make submission as to how the IMR should proceed.
Rejected the Minister's submission that the outcome would not have been different even if the
Second Reviewer had conducted an oral hearing, because the respondent's credibility may be
resolved
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Document Summary
Facts: the respondent is a national sri lanka of tamil ethnicity. Rejected the minister"s submission that the outcome would not have been different even if the. Second reviewer had conducted an oral hearing, because the respondent"s credibility may be resolved: nicholas j: oral hearings are most often thought to be desirable is where question arises to a witness"s credibility . In lam, mchugh and gummow jj picked up mchugh j"s dissent in teoh. They were heavily critical of teoh but also of a line of english authority which gave substantive effect to legitimate expectations (coughlan). The high court did not like the notion that a legitimate expectation could be held without subjectively holding it. Is teoh good law" after lam: officially, it was never overruled. In practice, the high court is most unlikely ever to revisit or confirm the reasoning in teoh. Their war on legitimate expectations has been too protracted for that.
