Due process of law and natural justice

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By Charlie Bulos, Legal Viewpoints

This is a principle in law that a person(s) cannot be deprived of life, liberty or property without observing the appropriate legal procedure and safeguards. In America, the Bill of Rights and the Fourteenth Amendment to its Constitution expressly warrants that the person accused of crime(s) must be informed of the charges, allowed counsel, and speedy trial including the enjoyment of equal protection of the laws. In the Philippines, this due process of law is likewise applied as part of the American legacy left behind. In Australia, we have also natural justice or procedural fairness rule. According to Justice Alan Robertson, in his article, ‘Judges & the Academy’, 14 September 2015, he said as follows and I quote in parts:

“The expression has theological and philosophical overtones and implications. A good instance is Lord Esher saying in 1885 that natural justice was “the natural sense of what is right and wrong”: Voinet v Barrett (1885) 55 LJQB 39 at 41, or Lord Mansfield explaining liability to repay money had and received on “natural justice and equity” in Moses v Macferlan (1760) 2 Burr 1005 at 1012; 97 ER 676.”

This principle of law is applied in administrative as well as in judicial pronouncements.

But, the question is, how often is this applied by the authority in making decision? We have a case where a student applied for visa from Cambodia when his visa expired and after he returned to his country applied for another visa to continue his studies. He has no adverse history of breaches of visa, or anything that will affect his further visa to study. The student completed his degree in IT overseas and wants to become an entrepreneur in the hotel and restaurant industry, but the Department of Immigration refused his application not believing he is a genuine student. Prior to refusal, he was not afforded natural justice or procedural fairness in a sense that DIBP should have allowed him to explain why his visa should not be refused. This natural justice or procedural fairness rule is provided under section 57 (A) of the Migration Act (1958) (‘the Act’)

In Kimheng Hour v Minister for Immigration & Border Protection-MLG1386 of 2015, which I am the lawyer for the applicant, the Minister through the Australian Government Solicitors decided to agree to the settlement of this case and as one of the statement of matters justifying the making of Orders by consent in paragraph 2, section 57A of the Act, which ‘provides that the Minister must give particulars of relevant information to an applicant and invite the applicant to make a comment on it’. Unfortunately, some decision makers despite the law, often times do not give substance to it. Notwithstanding the clear legislation, many utterly ignore it knowing that fighting the government over this issue is formidable and no one will challenge if it is the wrong decision apart from being expensive.

This is when the government can get away from it.

(For comments or feedback, email cbulos@imemlawyers.com.au)

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