FEDERAL COURT OF AUSTRALIA

NAQF v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 781

MIGRATION – natural justice – procedural fairness – application for Bridging visa pending final determination of pending application for Protection visa – Migration Review Tribunal (“MRT”) affirms decision of Minister’s delegate refusing Bridging visa – application to Court for relief in respect of MRT’s decision – complaint that on hearing before MRT, MRT misled applicant’s migration agent into believing that Bridging visa would issue, the only question being on what conditions – complaint that if misleading had not occurred, there would have been additional evidence and additional submissions before MRT – whether in fact migration agent had been misled – whether a reasonable person in his position would have been misled – whether state of mind of migration agent relevant – whether s 357A of Migration Act 1958 (Cth) excluded natural justice hearing rule entirely – construction of s 357A – use of extrinsic materials in construing s 357A – underlying purpose or object – ambiguity or obscurity.

STATUTORY INTERPRETATION – s 357A of Migration Act 1958 (Cth) – relationship between ss 15AA and 15AB of Acts Interpretation Act 1901 (Cth)

Migration Act 1958 (Cth) s 357A

Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)

Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB

WAID v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 220 referred to

Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 referred to

Federal Commissioner of Taxation v Trustees of the Lisa Marie Walsh Trust (1983) 48 ALR 253 referred to

Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 followed

Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541 followed

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 293 followed

Saraswati v R (1991) 172 CLR 1 referred to

VBAB v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 100 followed

NAQF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 604 OF 2003

LINDGREN J

SYDNEY

29 JULY 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 604 OF 2003

BETWEEN:	NAQF APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	29 JULY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 604 OF 2003

BETWEEN:

NAQF

APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE:	LINDGREN J
DATE:	29 JULY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1 By his amended application filed on 24 June 2003 the applicant seeks an order in the nature of certiorarisetting aside a decision of the Migration Review Tribunal (“the MRT”) and an order in the nature of mandamus remitting the matter to the MRT to be determined according to law. The MRT’s decision was one affirming a decision of the delegate (“the Delegate”) of the respondent (“the Minister”) that the applicant was not entitled to a Bridging E (Class WE) visa.

2 The proceeding raises a question as to the proper construction of amendments made by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) (“the Procedural Fairness Act”) which commenced to operate on 4 July 2002.

3 The ground of the application is that the MRT exceeded its jurisdiction by failing to accord the applicant procedural fairness. Particulars given in the amended application are that the MRT misled the applicant by implying that he would be granted a visa, the only question being on what conditions. As a result, so the applicant contends, evidence which he would have led in support of his application was not led, and submissions that would have been made were not made, and the outcome may been have affected as a result.

4 The Minister relies, inter alia, on s 357A of the Migration Act 1958 (Cth) (“the Act”) which is the first section in Div 5 of Pt 5 of the Act, dealing with the conduct of the review of decisions of the MRT. That section, which was introduced by the Procedural Fairness Act, is as follows:

“(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2) Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.”

The expression “the natural justice hearing rule” is not defined in the Act, but plainly it refers to the second of the following two familiar components of natural justice: a fair (unbiased) tribunal and a (procedurally) fair hearing.

5 The Minister also submits that in any event the applicant has not established non-compliance with the natural justice hearing rule, that is to say, with the procedural fairness requirements of the rules of natural justice.

FACTS

6 The applicant first arrived in Australia on 29 February 1996 on a fraudulently obtained “Serbian passport” and on a Sub-class 420 Entertainment visa which expired on 25 April 1996. On 24 April 1996, when lodging another application for a further Sub-class 420 visa, he was granted a Bridging A visa. The further Sub-class 420 visa was granted on 20 or 25 May 1996 (there is a conflict in the evidence) and ceased on 26 June 1996.

7 On 26 June 1996 the applicant was granted a Sub-class 686 Tourist (Long Stay) visa, which was valid until 30 December 1996. On that date, the applicant lodged an application for a further Sub-class 686 visa and was granted a Bridging A visa.

8 On 9 January 1997, however, the applicant withdrew his application for the further Sub-class 686 visa and lodged an application for a Sub-class 443 (Citizens of former Yugoslavia) visa, which was granted on that date and was valid until 31 July 1997.

9 On 31 July 1997 the applicant lodged an application for a Protection visa and was granted an associated Bridging A visa. The Protection visa application was refused on 9 September 1997 and the Bridging A visa ceased on 14 October 1997. No application for review of the decision refusing the Protection visa application was lodged.

10 The applicant became an unlawful non-citizen on 15 October 1997. Subsequently, he has worked in Australia without permission to do so.

11 The applicant departed Australia on 12 April 2001, falsely using the name of an Australian citizen. He returned on 23 April 2001, departed again on 20 June 2001 and returned again on 23 July 2001.

12 On 10 April 2003 the applicant was located at Sydney Kingsford Smith Airport attempting to depart Australia on a fraudulently obtained Australian passport in the name of another person. He was detained on suspicion of travelling on a fraudulently obtained passport and was transferred to Villawood Immigration Detention Centre, where he remains in detention.

13 On 15 April 2003, the applicant again lodged an application for a Protection visa. The next day, 16 April 2003, he lodged an application for a Bridging E visa, on the basis of his undetermined application for the Protection visa.

14 On 22 April 2003 the Delegate refused the application for the Bridging E visa. The Delegate found that the applicant did not meet the “Primary Criteria” for a Bridging E visa specified in subcll 050.212(2)–050.212(9) of Schedule 2 to the Migration Regulations 1994 (Cth). The Delegate said, in particular, that the applicant did not satisfy the criterion specified in subcl 050.212(3), which was, relevantly, “that the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia and that application has not been finally determined”. The Delegate’s reasoning was that the applicant’s purported application for the Protection visa lodged on 15 April 2003 was barred by s 48 of the Act, and therefore was not valid, because his earlier application for a Protection visa had been refused on 9 September 1997 (subs 48(1) of the Act speaks of a non-citizen in the migration zone who does not hold a substantive visa and who after last entering Australia, was refused a visa).

15 On 22 April 2003 the applicant applied to the MRT for review of the Delegate’s decision to refuse to grant him a Bridging E visa.

16 On Thursday 1 May 2003 the MRT wrote by facsimile transmission to the applicant care of his solicitor, Mr Chand of Johnston Vaughan, pursuant to s 359A of the Act, giving “particulars of ... information that the [MRT] consider[ed] would be the reason, or a part of the reason, for affirming the decision ... under review”. The letter (“the s 359A letter”) gave the applicant the following summary of information adverse to his application which was contained in the file of the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”):

“· You were located attempting to depart Australia on a fraudulently
obtained passport in the name of Dusan Kostic,

· You are recorded to have stated that you have run a business for the last 10 years without permission to work, however, movement records indicate that you only arrived in Australia on 26 February 1996,

· Department records state that you were uncooperative when requested to be interviewed after your location.

· You have been an unlawful non-citizen since 15 October 1997 and failed to approach the Department to regularise your status.”

The s 359A letter continued immediately as follows:

“The above information is relevant to the review because, if the information is true, it indicates that in the past you have not complied with the Migration Act and Regulations by remaining in Australia unlawfully and that you worked without permission and that you may have provided false or misleading information to the Department. This information is relevant to the review as it is relevant to whether you would abide by conditions on any Subclass 050 bridging visa granted to you, having regard to any security requested to ensure compliance with those conditions. In particular, it is relevant to whether you would abide by conditions 8101 (no work), 8401 (must report as specified), 8505 (reside at specified address), 8506 (notify Department 2 working days in advance of change of address), 8510 (present valid passport) and 8512 (depart by specified date).

You are invited to comment on this information in an interview conducted by the Tribunal immediately prior to the hearing.” (my emphasis)

The numbers specified in the passage last set out above are references to visa conditions in Schedule 8 to the Migration Regulations 1994 (Cth).

17 The hearing before the MRT was already fixed to take place the following day, Friday 2 May 2003 at 1.30 pm.

18 On the morning of the day of the hearing, Rudy Noel Frugtniet, the applicant’s registered migration agent, travelled from Melbourne to Sydney to assist the applicant at the hearing. Mr Chand gave him a copy of the s 359A letter a couple of hours before the hearing was due to start. Prior to receiving that copy letter, Mr Frugtniet had prepared (I presume in Melbourne) a lengthy written submission to the MRT. It bears the date 2 May 2003, and the impression of an MRT “received” stamp for 2 May 2003.

19 The applicant was brought from Villawood to the MRT for the hearing. Mr Frugtniet had the opportunity of discussing the s 359A letter with him for about a quarter of an hour before the commencement of the “interview conducted by the [MRT] immediately prior to the hearing”.

20 The MRT first conducted the interview of the applicant (at which Mr Frugtniet was present) in relation to s 359A letter, and then the hearing. The applicant and his partner gave evidence at the hearing and Mr Frugtniet was again present.

21 Finally, again on 2 May 2003, the MRT affirmed the Delegate’s decision, finding that the applicant was not entitled to the grant of a Bridging E (Class WE) visa. The MRT notified the applicant of its decision under cover of a letter dated 16 May 2003.

22 The MRT’s reasoning differed from that of the Delegate. The MRT found that the applicant satisfied the primary criteria required to be satisfied at the time of application (subcl 050.21), but not the primary criteria required to be satisfied at the time of decision (subcl 050.22). The reason is that the MRT was not satisfied that, if granted the Bridging E (Class WE) visa, the applicant would abide by the conditions imposed on the visa (subcl 050.223).

23 The applicant commenced this proceeding on 20 May 2003.

AFFIDAVIT EVIDENCE BEFORE THE COURT ON THE HEARING OF THE PRESENT APPLICATION

24 The transcript of the hearing on 2 May 2003 before the MRT was in evidence before me, as was certain affidavit testimony of Mr Frugtniet.

25 Mr Frugtniet’s affidavit stated, relevantly, as follows:

“I provided a copy of the letter [the s 359A letter] to the client and informed him fifteen minutes before the hearing that he was required to comment on the matters contained in the letter.

The nature, tone and content of the Tribunal’s questions created the impression in my mind that the bridging visa would be granted, and that any remaining doubt was over the conditions which would be imposed.

Because of the manner in which the hearing was conducted, when the member asked me whether I wanted to make any further submissions, I said no, and that I was satisfied.

Had I not inferred, from the manner in which the Member questioned me, that the visa would be granted, I would have taken a number of further steps to persuade the Minister that a visa should be granted.

First, I would have asked the Member to consider imposing more stringent conditions, under Item 8401 of Schedule 8 of the Regulations.

Second, I would have relied on other evidence available at the time in the hearing room by support groups prepared to sustain the client financially, including the Applicant’s spouse, some of whom were also prepared to pay security towards any bond that might be required.

Third, I would have suggested to the Court [sic – Tribunal] that the fact that the Applicant had an Australian wife and children should be taken into account in considering the risk of the client breaching visa conditions, because it meant that he had clear ties to the community in which he had been living.

Fourth I would have asked the Tribunal to expand upon those aspects of the concerns raised in the letter which remained of concern to the Tribunal, so that I could consider eliciting further evidence from the client, or making further submissions. I did not do so, because the Tribunal’s conduct of the hearing misled me into believing that those matters were not in issue.”

26 Mr Frugtniet was cross-examined. I will refer to his cross-examination below.

OUTLINE OF PARTIES’ SUBMISSIONS

27 The applicant’s complaint is that the hearing before the MRT was not conducted in conformity with the procedural fairness requirements of the general law principles of natural justice. More precisely, he complains that through Mr Frugtniet he was misled into not adducing further evidence and into not making further submissions, such as those outlined in Mr Frugtniet’s affidavit.

28 The parties are at issue as to whether the applicant has established non-observance of the requirements of natural justice which would entitle him to relief under general law principles. The Minister submits, first, that I should not be satisfied that Mr Frugtniet was, or that a reasonable person in Mr Frugtniet’s position would have been, misled as claimed, and, secondly, that even if Mr Frugtniet was, and a reasonable person in his position would have been, misled as claimed, on the evidence any misleading is shown to have been only of the applicant’s migration agent, not of the applicant, and the misleading of the migration agent did not give the applicant an entitlement to relief.

29 The applicant, on the other hand, submits that I should be satisfied that Mr Frugtniet was, and that a reasonable person in Mr Frugtniet’s position would have been, misled as claimed, and that, having regard to the substantial role Mr Frugtniet was invited or permitted by the MRT to play on the hearing, the misleading of Mr Frugtniet entitles the applicant to relief.

30 The Minister further submits that, in any event, s 357A of the Act (set out at [4] above) provides a complete answer to the application. He submits that the expression “the matters it deals with” in subs 357A(1) refers generally to all procedural aspects of the conduct of a review by the MRT. In a refined version of this submission, he submits that since some procedural aspects of the conduct of a review by the MRT are dealt with by Div 5 of Pt 5 of the Act (see ss 359A and 360, for example), there is no scope for the “natural justice hearing rule” to give a remedy if the MRT misleads an applicant, even though the misleading of applicants may not itself be “dealt with” by any provision to be found in Div 5.

31 The applicant submits that subs 357A(1) has a narrower operation. He submits that the expression “the matters it deals with” refers only to any matters which are addressed by provisions to be found in Div 5. He contends that the aspect of the natural justice hearing rule relied on, namely, that the MRT must not mislead an applicant into not leading evidence or making submissions, is not “dealt with” by any provision in Div 5. Accordingly, he argues that subs 357A(1) has no scope for operation in relation to that aspect of the rule, which therefore continues to apply to the MRT and remains available as a basis for the granting of relief to applicants.

32 It was not in dispute that where the general law requirements of natural justice apply, it is a failure to meet those requirements for a tribunal to mislead a party into not giving evidence or making submissions, where the tribunal’s conduct would have misled a reasonable person in the same position.

REASONING

Issue 1: Did the MRT’s conduct fail to comply with the natural justice hearing rule?

33 In cross-examination Mr Frugtniet said that his understanding at the time of preparing his written submissions was that his primary task would be to persuade the MRT that the application for a Protection visa was a valid application. However, he agreed he knew at that time that the applicant’s past conduct was also likely to be an issue in relation to the question whether the Minister could be satisfied that the applicant would meet any conditions imposed on a visa. Mr Frugtniet’s written submissions began by addressing the former issue, but later addressed the question of compliance with conditions. In that context, they referred to the applicant’s willingness to abide by a condition that he “reside with his de facto wife and children” and asserted that “he is a caring and loving family man”. As well, the submissions sought to exculpate the applicant, to some extent, in respect of his past conduct.

34 When, on the morning of 2 May 2003, Mr Frugtniet was given a copy of the s 359A letter, he knew that the four matters listed in [16] above constituted possible reasons for refusing the Bridging E visa, and he informed the applicant to that effect. Mr Frugtniet understood that, for this reason, it was important that the applicant respond to those four matters before the MRT.

35 Mr Frugtniet agreed he understood that if the first hurdle was overcome (the validity of the application for the Protection visa), the MRT would then be obliged to determine, first, what conditions it would be appropriate to impose on a visa, and, secondly, whether the applicant would abide by those conditions.

36 The MRT’s interview of the applicant began with the MRT eliciting the applicant’s responses to the four matters mentioned. The applicant said:

· it was correct that he had been located attempting to depart Australia on a fraudulently obtained passport;

· he had run a business in Australia for the last two or three years, not ten years;

· he had not been “uncooperative”, but had been “confused” and “a bit scared”; and

· it was correct that he had been an unlawful non-citizen since 15 October 1997.

37 At this point, the interview ended and the hearing began. Both the applicant and Mr Frugtniet spoke. As noted earlier, there is an issue as to the relevance of Mr Frugtniet’s understanding of the stance being taken by the MRT and of his response to it, and therefore as to the admissibility of his affidavit testimony (set out at [25] above). Section 366A of the Act, relied on by the Minister, is as follows:

“(1) The applicant is entitled, while appearing before the Tribunal, to have another person (the assistant) present to assist him or her.

(2) The assistant is not entitled to present arguments to the Tribunal, or to address the Tribunal, unless the Tribunal is satisfied that, because of exceptional circumstances, the assistant should be allowed to do so.

(3) Except as provided in this section, the applicant is not entitled, while appearing before the Tribunal, to be represented by another person.

(4) This section does not affect the entitlement of the applicant to engage a person to assist or represent him or her otherwise than while appearing before the Tribunal.”

Section 366A does not have the effect that any understanding which an assistant may derive from things said by the MRT Member, is deemed, for the purposes of natural justice requirements, to be the understanding of the applicant. But the circumstances of a particular hearing may be such that the inducing of a certain state of mind in an assistant by the Member may be relevant to the question of a failure to observe general law requirements of procedural fairness. I do not find s 336A determinative of the question: it is but a starting point.

38 The course of the hearing is relevant to the three sub-issues raised by Issue 1:

1. Did the Member mislead Mr Frugtniet into having the understanding alleged?

2. Would the Member have misled a reasonable person in Mr Frugtniet’s position into having that understanding?

3. If “yes” to 1 and 2, was Mr Frugtniet’s understanding to be treated as that of the applicant for the purposes of the natural justice hearing rule (subject always to the effect of s 357A)?

39 The Member’s questioning addressed in sequence the following topics:

· whether there was a subsisting valid application for a Protection visa;

· the matter of conditions to be imposed and whether the applicant would be likely to comply with them;

· the matter of provision of security for compliance.

The first matter is one which the Member took up with Mr Frugtniet, and on which Mr Frugtniet spoke at some length. That he did so is readily understandable because the Delegate’s unfavourable decision was referable to that matter.

40 After exchanges between the Member and Mr Frugtniet on that matter, the Member, addressing the applicant, said there were “three steps” which he (the Member) was required to take “to determine whether you are eligible for the visa that you seek”. The Member said he had been discussing the first step with Mr Frugtniet and it appeared that the applicant had in fact applied for a Protection visa, so that he was “eligible to be considered for a Bridging visa”. The Member then explained to the applicant:

“Okay, so the next issue I have to think about is whether you will abide by visa conditions if you are allowed [sic – out?]. Now I’ll just go through what the conditions are. If condition 8101 were imposed on you, would you be able to support yourself without working?”

The Member questioned the applicant about all six conditions mentioned in the s 359A letter ([16] earlier) and also condition 8507 (payment of the cost of the applicant’s detention at the Villawood Detention Centre).

41 The applicant relies on the fact that when discussing the conditions, the Member frequently used, not the present conditional tense of verbs, but the future tense, in a way that would have been appropriate if he was speaking about conditions to be attached to a visa which was in fact to issue.

42 The applicant relies, in particular, on the Member’s recapitulation of the discussion of conditions in the following passage:

[MEMBER]: “Okay, all right. Mr NAQF, I would be keen to impose a condition 8512, which is that you are to leave by a date specified. What I would do is I would specify the date – it’s a bit hard to do this with much accuracy but in the event that the Protection Visa application was ultimately unsuccessful, including all appeal rights, then to leave within 28 days of that.

[MR FRUGTNIET]: Absolutely.

[MEMBER]: Is that all right?

[MR FRUGTNIET]: Absolutely but Member, is that in any way precluding the lodging of any other application or is it more broadly worded to say--–

[MEMBER]: Okay, I’ll just go back again. I’ll say that, yes, he’s got to leave by a date specified. The problem with this is that it’s quite hard for me to specify it with a lot of accuracy.

[MR FRUGTNIET]: That’s right.

[MEMBER]: But what I meant is that even if he’s unsuccessful ---

[MR FRUGTNIET]: Yes, yes.

[MEMBER]: Okay, if unsuccessful with the Protection Visa, then he’s going to have to leave.

[MR FRUGTNIET]: Correct, indeed.

[MEMBER]: Which, in fact, even if I didn’t put that on, I think he’s going to have to do that anyway.

[MR FRUGTNIET]: Without a doubt.

[MEMBER]: Yes and so – all right, so what that means – I’ll just go through that again – sorry, some of these things are a little bit hard to explain – this condition 8512, I’m saving, if you are unsuccessful in getting the refugee status, then you have to leave Australia within 28 days but remember, even if you are unsuccessful before the Department, there is an appeal right. So when I mean unsuccessful, I mean unsuccessful as in after having exhausted every appeal. Okay, so it would then be necessary – you would have to leave Australia and then you could – assuming you are still wanting to do this, of course – you could then apply for a Spouse Visa offshore. The way it works, I don’t think you have to even return to your country of origin. You can go to New Zealand or somewhere.

[MR FRUGTNIET]: I think, Member, you have raised an anomaly in that going by without so much as looking at the ... or otherwise, I think you are quite right in that it says the circumstances are a spouse or a defacto spouse of an Australian citizen.

[MEMBER]: And not a citizen.

[MR FRUGTNIET]: Yes, so it’s the other way. So the defacto of what you brought in is fine, she has applied for citizenship.

[MEMBER]: Yes, it’s messy, isn’t it. However, it seems to me, that it takes a while for Protection Visa applications to be finalised, particularly when you appeal.

[MR FRUGTNIET]: That’s right.

[MEMBER]: So you could imagine then that in a year or two, if you did have to go offshore, it’s more likely than not that his wife would be a citizen.

[MR FRUGTNIET]: That’s right.

[MEMBER]: And it’s more likely than not that he would be able to prove – they probably would have been able to marry by then and they probably would be able to produce heaps of evidence that they are in a spouse relationship.

[MR FRUGTNIET]: Indeed.

[MEMBER]: So even if he had to go offshore, it would be on that basis.

[MR FRUGTNIET]: Indeed.

[MEMBER]: Okay. I’m not quite sure I have any more questions. Was there anything else that you want to say?

[APPLICANT THROUGH INTERPRETER]: No.

[MEMBER]: All right. I stress that it will be important that you do abide by these conditions because I think it would be fair to say that if you didn’t, then you would be ... of getting a Bridging Visa on a second attempt would be much reduced.

[APPLICANT]: Yes, I understand.

[MEMBER]: Okay, well, what we will do – were there any other submissions that you want to make at this stage?

[MR FRUGTNIET]: No, Member. I am satisfied.”

43 In addition, the applicant relies on the following passage which occurred in the course of the Member’s questioning of the applicant’s de facto wife:

[MEMBER]: “I see 8101 is not mandatory here so, I don’t know, it might be causing more problems than it solves.

[MR FRUGTNIET]: Because there appears to be a variety of interest …

[MEMBER]: All right, well, we’ll take off the work prohibition, okay. If you get the visa you will be able to work. Okay, but another condition attached to his visa is that he’ll have to report either to the police or the Department of Immigration on a fairly regular basis. Okay, another condition is he has got to keep Immigration informed where he is living. Okay and pay detention costs, which is going to be something like $2,500.”

44 I agree that, read in isolation, the use of the future tense may well suggest an assumption that a visa will issue. But it cannot be read in isolation. Importantly, the Member even used what may be thought of as the future “will abide”, rather than the obviously conditional “would abide”, in the prefatory passage set out in [40] above, in which it is plain beyond argument that the ensuing discussion was to be about conditions to be attached if a visa was to issue.

45 There were other occasions, also, within the following 11 pages of transcript of discussion of conditions between the Member and the applicant and Mr Frugtniet, when the Member made it clear that the conditions discussed were ones to be imposed if a visa issued. For example, in an exchange with Mr Frugtniet, the Member said:

“... if I left him in detention, for example, then Immigration would expedite the assessment of the Protection visa application.” (my emphasis)

When the applicant’s de facto wife was called, the Member said to her:

“What is going to happen is that if he gets released ... there are certain conditions that will be attached to the visa ...”. (my emphasis)

And in the passage set out at [43] above, following an interjection by Mr Frugtniet, the Member said:

“All right, well, we’ll take off this work prohibition, okay. If you get the visa you will be able to work.” (my emphasis)

46 Counsel for the applicant submitted that the last two statements by the Member should be disregarded because they occurred after both the applicant and Mr Frugtniet had told the Member they had nothing further to say. I reject this submission for two reasons. First, the applicant himself has called in aid the passage set out in [43] which occurred during the questioning of the applicant’s de facto wife. Secondly, the applicant and Mr Frugtniet were present while she was being questioned and could have sought an opportunity to say something further following the Member’s saying “if he gets released” and “[i]f you get the visa”.

47 The way in which the Member expressed himself may have inspired hope, even confidence, in Mr Frugtniet, but I am not satisfied that Mr Frugtniet understood that the Member had represented to those present that he had decided finally that the visa was to issue. As an experienced Migration Agent, Mr Frugtniet knew at the beginning of the hearing:

· that there was an issue, in view of the applicant’s previous record, as to whether the Member would be satisfied that the applicant would abide by conditions; and

· that if the Member was not satisfied that the applicant would do so, the visa would not issue.

I think Mr Frugtniet understood that these issues remained alive to the end of the hearing, even if he felt confident that a visa would issue.

48 Moreover, a reasonable person in Mr Frugtniet’s position would not have thought it a foregone conclusion that the visa would issue. It is common, during and following a hearing, for those present to feel optimistic or pessimistic, knowing, nonetheless, that there can be no certainty until the decision is announced. The Member’s conduct of the hearing did not exceed permissible bounds by misleading a reasonable person in the position of Mr Frugtniet, acting reasonably, into believing that a visa would definitely issue.

49 For these two reasons, the present application should be dismissed with costs. I need not deal with the third sub-issue identified at [38] above.

Issue 2: Construction of s 357A

General – the text and context of s 357A

50 In view of my conclusion above, I need not address the question of construction but, since it was argued at length, I will do so. The issue of the proper construction of s 357A turns on the expression “the requirements of the natural justice hearing rule in relation to the matters [Div 5] deals with”, and, in particular, the words “the matters [Div 5] deals with”.

51 The Minister submits that, by reference to the heading to Div 5 and without the necessity of any reference to the provisions within that Division, the expression “the matters it deals with” must be taken to mean all procedural aspects of the “conduct of review[s]” by the MRT, including any aspects which may not be “dealt with” by any particular provision within the Division. In a variation of this submission the Minister contends that the expression bears that meaning provided there can be found at least one provision within Div 5 giving protection of a “natural justice hearing rule” kind.

52 The Minister invites me to have regard to the Explanatory Memorandum relating to the Migration Legislation Amendment (Procedural Fairness) Bill 2002 (Cth) (“the Explanatory Memorandum”) and the Ministerial Second Reading Speech on that Bill (Parl Debs, HR, 13 March 2002, pp 1106-1107 – “the Second Reading Speech”). The applicant submits that it is impermissible to have regard to those extrinsic materials.

53 As recorded in [4] earlier, subs 357A(1) states:

“This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.” (my emphasis)

It is noteworthy that the Parliament had previously excluded the rules of natural justice in unqualified terms (see the former subs 476(2)(a) of the Act, repealed by the Migration Legislation Amendment (Judicial Review) Act 2001 (No 134, 2001), s 3, Sch 1, item 7) and has chosen not to do so on this occasion. This suggests that a more limited exclusion is intended. I am bound to give effect to the legislative intention as found in the words the legislature has chosen to use. Those words, not the words of the Explanatory Memorandum or of the Second Reading Speech, have passed through the parliamentary process. Those words, not the words of the Explanatory Memorandum or the Second Reading Speech, are correctly understood and relied on by the public as having the character of law.

54 In WAID v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 220 (“WAID”) French J referred to the equivalent provision in s 422B of the Act, relating to the Refugee Review Tribunal. His Honour said (at [57]) of that section, which is in substance identical to s 357A:

“That is to say the procedural requirements set out in Div 4 [of Pt 7 of the Act] so far as they are referable to the requirements of procedural fairness in relation to the right to be heard are to be treated as exhaustive. They are to be treated as exhaustive in relation to the matters with which Div 4 deals. Division 4 is concerned generally with conduct of a review by the Tribunal. One of the matters with which it deals, under that rubric, is the provision to an applicant of information that ‘... the Tribunal considers would be the reason or a part of the reason, for affirming the decision that is under review ...’. That is to say it deals with the provision to the applicant of information, known to the Tribunal, which would be adverse to the applicant’s application. When read with s 422B, in my opinion, s 424A is now to be treated as exhaustive of the requirements of procedural fairness relating to the applicant’s right to comment on adverse material which is known to and is to be relied upon by the Tribunal.” (my emphasis)

55 The relevant complaint in WAID was that in affirming the decision under review, the Refugee Review Tribunal (“RRT”) had relied on country information adverse to the applicant’s claims without having first referred that information to the applicant. Section 424A within Div 4 (headed “Conduct of review [by the RRT]”) of Pt 7 (headed “Review of protection visa decisions”) of the Act, was, relevantly, as follows:

“424A(1) Subject to subsection (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

...

(3) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b) ...; or

(Section 424A was, in substance, identical to s 359A within Div 5 (headed “Conduct of review [by the MRT]”) of Pt 5 (headed “Review of decisions”) of the Act.)

56 In the passage set out in [54] above, French J, who had referred to the Explanatory Memorandum and the Second Reading Speech, characterised s 424A, for the purposes of s 422B, as a provision dealing with the general matter of “the provision to the applicant of information, known to the Tribunal, which would be adverse to the applicant’s application”. In the light of that characterisation, it followed for his Honour that there was no scope for the rules of natural justice to require disclosure of adverse country information, because information of that kind “[was] not specifically about the applicant or another person and [was] just about a class of persons of which the applicant or other person [was] a member”.

57 His Honour did not stop at the heading to Div 4 of Pt 7 as the Minister would have me do, but looked for a provision within that Division dealing with a relevant “matter” having some relationship with the “natural justice hearing rule”.

58 Faced with the text of subs 357A(1) alone, if I were asked , “What does Div 5 of Pt 5 deal with?” or “What is the subject matter of Div 5 of Pt 5?”, I might well answer, “The conduct of reviews by the MRT”, by reference to the Division’s heading (that heading is deemed to form part of the Act: Acts Interpretation Act 1901 (Cth), s 13). The reason is that the general form of the question would direct the inquiry to a whole but single subject matter, and suggest that a short, general, summary form of response was being sought. On the other hand, if I were asked, “What are the matters Div 5 of Pt 5 deals with?”, I would look to the sections within the Division for an answer, as French J did in WAID. The plural form of “matters” would direct the inquiry to the possibility of a number of even diverse matters.

59 Contrary to the applicant’s submission, as I understood it, on any reckoning the expressions “the matters it deals with” in subs (1) and “the matters they deal with” in subs (2) must have been intended to refer to something wider than the exact text of the enacted procedural requirements, otherwise those subsections would be superfluous. It is inconceivable that the legislature meant the displacement of the natural justice hearing rule to be co-extensive with, and not to go beyond, the precise text of the express protections of a procedural fairness kind, to be found within Div 5 (or ss 375, 375A and 376 and Div 8A). For example, within Div 5, subs 360(1) provides as follows:

“The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

If subs 357A(1) signified that the natural justice hearing rule was excluded only to the precise extent that it would have required the Tribunal to “invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review” (with all that that provision implies – see [85] below) and no further, subs 357A(1) would have achieved nothing in the present respect: the rule would survive as a ground for relief outside the parameters of subs 360(1).

60 Once it is accepted, as it must be, that the expression “the matters it deals with” in subs 357A(1) was intended to refer to a larger subject matter or larger subject matters than the exact text of the procedural fairness requirements to be found in Div 5, the question “How much larger?” inevitably arises.

61 There are two textual considerations which may be thought to support the broad construction, “as large as ‘all procedural aspects of the conduct of reviews by the MRT’”, suggested by the Minister.

62 First, there is the contrast between the singular form of subs 357A(1) (“This Division is taken to be ... it deals with”) and the plural form of subs 357A(2) (“Sections 375, 375A and 376 and Division 8A ... are taken to be ... they deal with”).

63 The second consideration arises from the way in which s 357A was introduced. The Procedural Fairness Act introduced sections virtually identical to s 357A in relation to six forms of decision-making, as items 1–6 of Schedule 1 to that Act. Each introduced the section with the heading, “Exhaustive statement of natural justice hearing rule”. Each consisted of subs (1) and (2). Subsection (1) was, with one variation, in each case identical to subs 357A(1) (set out at [4] above). The variation was that in some cases the opening reference was to the Subdivision, rather than the Division, in which the section was inserted. Subsection (2) was, with one variation, identical to subs 357A(2) (also set out at [4] above). The variation was that in the other cases the opening reference was to ss 494A to 494D, or, in the case of subs 422B(2), to ss 416, 437 and 438 and Div 7A, rather than to ss 375, 375A and 376 and Div 8A. The following table indicates the newly introduced provisions:

Item 1: Before s 52, there was inserted s 51A as the new opening provision of Subdiv AB of Div 3 of Pt 2. Subdivision AB sets out, according to its heading, a “Code of procedure for dealing fairly, efficiently and quickly with visa applications” at the primary decision-making stage.

Item 2: After s 97 there was inserted s 97A as the second section in Subdiv C in Div 3 of Pt 2. Subdivision C is headed “Visas based on incorrect information may be cancelled”. Section 109 within the Subdivision empowers the Minister to cancel a visa on the basis of a supply of incorrect information, a failure to supply information, or the giving of a bogus document in various situations. The Subdivision also lays down the procedure to be followed by the Minister if the power of cancellation is to be exercised.

Item 3: Before s 119 there was inserted s 118A as the new opening section of Subdiv E in Div 3 of Pt 2. Subdivision E is headed “Procedure for cancelling visas under Subdivision D in or outside Australia”. It sets out procedures associated with the cancellation of visas under s 116 of the Act. Section 116 provides that the Minister may cancel a visa if the Minister is satisfied that any one of the grounds specified in the section exists.

Item 4: Before s 128 there was inserted s 127A as the new opening section of Subdiv F in Div 3 of Pt 2. Subdivision F is headed “Other procedure for cancelling visas under Subdivision D outside Australia”. Subdivision F allows for visas to be cancelled without notice in certain circumstances, and provides for the revocation of such a cancellation. It sets out a procedure for notification of the cancellation and for considering and deciding whether to revoke a cancellation.

Item 5: As already noted, before s 358 there was inserted s 357A, the provision with which we are concerned, as the new opening section of Div 5 in Pt 5 of the Act. Part 5 of the Act provides for the review of decisions by the MRT. As previously noted, Div 5 within Pt 5 is headed “Conduct of review” and sets out certain procedural requirements associated with reviews by the MRT.

Item 6: Before s 423 there was inserted s 422B as the new opening section of Div 4 in Pt 7 of the Act. Part 7 of the Act provides for the “Review of Protection Visa Decisions” by the RRT. Division 4 within Pt 7 is headed “Conduct of review” and sets out certain procedural requirements associated with such reviews.

64 The drafter may have invoked the expression “in relation to the matters they deal with” as a universally applicable general formula for distinguishing between the six contexts. That is to say, to take Item 5 as an illustration, the drafter may well have been attempting to say that Div 5 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the subject matter of Div 5 as distinct from the subject matter of the respective Divisions and Subdivisions in which the other five sections were to be inserted.

65 The two considerations outlined above are not, however, to my mind, compelling, and in fact they do not persuade me.

The Acts Interpretation Act 1901 (Cth)

66 I turn now to consider relevant provisions of the Acts Interpretation Act 1901 (Cth) (“the AI Act”). Section 15AA of the AI Act provides as follows:

“In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”

This provision is mandatory and does not depend for its operation on the existence of some obscurity or ambiguity. It applies at the beginning of the process of interpretation. It requires, however, that there be two competing constructions: one which does, and the other which does not, promote the purpose or object underlying “the Act”.

67 Section 15AB of the Acts Interpretation Act has the effect that consideration may be given to the Explanatory Memorandum and the Minister’s Second Reading Speech if that material is “capable of assisting in the ascertainment of the meaning of” s 357A. But under subs 15AB(1) consideration may be given to those extrinsic materials only:

“(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or

(b) to determine the meaning of the provision when:

(i) the provision is ambiguous or obscure; or

(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.” (my emphasis)

68 Subsection 15AB(3) provides that in determining whether consideration should be given to any such extrinsic material, or in considering the weight to be given to it, the court must have regard to:

“(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose and object underlying the Act; and

(b) the need to avoid prolonging legal or other proceedings without compensating advantage.” (my emphasis)

69 Where the circumstances attract s15AA (see [66] above), the first task is to attempt to identify “the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act” (par 15AB(1)(a)). But in any case where the provision is ambiguous or uncertain, or in a case where the ordinary meaning conveyed as described “leads to a result that is manifestly absurd or is unreasonable”, extrinsic materials may be considered to ascertain the true meaning of the provision (par 15AB(1)(b)). Even absent ambiguity or obscurity or manifest absurdity or unreasonableness of result, extrinsic materials may be considered in order to “confirm” that the ordinary meaning so conveyed as described is the true meaning of the provision (par 15AB(1)(a)).

70 Paragraphs 15AB(1)(a) and (b)(ii) and subs (3) assume that the ordinary meaning of a provision “taking into account its context in the Act and the purpose or object underlying the Act” has been identified before any occasion arises for the consideration of extrinsic materials in accordance with those provisions.

71 The Minister submits that his suggested construction of subs 357A(1) promotes “the purpose or object underlying the Act” and that the construction suggested by the applicant would not do so. How is “the purpose or object underlying the Act” to be ascertained for the purposes of s 15AA? Sometimes the purpose or object underlying an Act may be divined from the text of the Act as a whole, or from a statement, forming part of the Act, of the Act’s purpose or object. In the present case, the statement of the object of the Act in s 4 of the Act is too general to be of assistance, and I cannot identify from the text of the Act as a whole (whether “the Act”, for present purposes, means the Act or the Procedural Fairness Act) a purpose or object underlying it with such precision as would enable me to say that a particular construction of s 357A does or does not promote that purpose or object.

72 It is questionable whether it is permissible to ascertain the underlying purpose or object for the purpose of s 15AA from extrinsic materials; cf Federal Commissioner of Taxation v Trustees of the Lisa Marie Walsh Trust (1983) 48 ALR 253 at 260 per McGregor J, 278 per Fitzgerald J. For the reasons outlined in the preceding paragraph, I do not think s 15AB provides authority for doing so. Moreover, s 15AA was inserted by the Statute Law Revision Act 1981 (Cth), whereas s 15AB was inserted later by the Acts Interpretation Amendment Act 1984 (Cth), and s 15AA was therefore at least intended to be capable of having effect without reference to extrinsic materials. But it may be appropriate to consider the Explanatory Memorandum and the Second Reading Speech for the purpose of identifying the mischief which s 357A was intended to address, as part of the general law purposive approach to statutory interpretation, and in the course of doing so to identify the purpose or object underlying the Act for the purposes of s 15AA; cf Saraswati v R (1991) 172 CLR 1 at 21 per McHugh J. Another question associated with s 15AA is whether “the Act” means the Act into which s 357A was inserted and of which it was to be read as part, or the Procedural Fairness Act which inserted it.

73 As will appear later, I am able to resolve the question of construction of s 357A as it arises on the facts of this case without taking those two documents into account and without addressing the questions mentioned any further.

The Explanatory Memorandum and the Second Reading Speech

74 I digress in this section to note that if the meaning of subs 357A(1) were to be dictated by the underlying purpose or object of the Procedural Fairness Act as exposed by the Explanatory Memorandum and the Second Reading Speech, the result would be clear. If I concluded that subs 357A(1) was “ambiguous or obscure” and referred to the Explanatory Memorandum and the Second Reading Speech to determine its meaning, I would accept the Minister’s submission.

75 Both the Explanatory Memorandum and the Second Reading Speech show that the purpose or object of the Procedural Fairness Act was to overcome the decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 (“Miah”). In Miah the High Court held, by majority, that the Act as it was at the relevant time did not exclude the application of the common law rules of natural justice to the process of decision-making by the Minister or the Minister’s delegate, as to whether to grant a protection visa. In particular, the Court held that the provisions in Subdiv AB of Div 3 of Pt 2 of the Act, headed “Code of procedure for dealing fairly, efficiently and quickly with visa applications”, did not evince an intention to exclude the common law requirements from that process of decision-making.

76 In Miah the delegate decided against Mr Miah partly on the basis that there had been a material change of circumstances in his country (Bangladesh) resulting from the June 1996 elections there. Those elections post-dated Mr Miah’s arrival in Australia, and, indeed, they post-dated his lodgement of the application for a protection visa. The delegate had not given notice to Mr Miah that the change of government was an issue, and Mr Miah had not been afforded an opportunity to address the matter.

77 The decision of the Court was given by majority (Gaudron, McHugh and Kirby JJ, Gleeson CJ and Hayne J dissenting). Gleeson CJ and Hayne J thought that Subdiv AB of Div 3 of Pt 2 of the Act did evince a legislative intention (at [49]):

“to prescribe comprehensively the extent to which, and the circumstances in which, the Minister or delegate is to give an applicant an opportunity to make comments or submissions, or provide information, in addition to the information in the original application or any supplementary information furnished by the applicant before a decision is made.”

But the majority, Gaudron, McHugh and Kirby J, in separate judgments, disagreed. McHugh J stated (at [126]-[128], footnotes and footnote references omitted):

“It is now settled that, when a statute confers on a public official the power to do something which affects a person’s rights, interests or expectations, the rules of natural justice regulate the exercise of that power ‘unless they are excluded by plain words of necessary intendment’. An intention on the part of the legislature to exclude the rules of natural justice is not to be assumed nor spelled out from ‘indirect references, uncertain inferences or equivocal considerations’. Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice. As I pointed out in Theopahanous v Herald & Weekly Times Ltd:

‘The true meaning of a legal text almost always depends on a background of concepts, principles, practices, facts, rights and duties which the authors of the text took for granted or understood, without conscious advertence, by reason of their common language or culture.’

The common law rules of natural justice are part of this background. They are taken to apply to the exercise of public power unless clearly excluded.

Accordingly, the relevant question in the present proceedings is whether the terms of the Act, particularly subdiv AB, display a legislative intention to exclude the common law rules of natural justice. More specifically, the question is whether the Act intended to deny an applicant ‘an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise’.

It is highly improbable that the legislature intended to exclude all the common law requirements of natural justice from subdiv AB. There are no clear words to that effect. Where Parliament has wanted to exclude common law rules from applying to the administration of the Act, it has not hesitated to do so in clear words (see, eg, s 476(2)). Moreover, subdiv AB is headed ‘Code of procedure for dealing fairly, efficiently and quickly with visa applications’. (Emphasis added) It therefore assumes that the ‘code’ will operate fairly. The subdivision sets out various formal procedures which the Minister may or must follow to ensure fairness to applicants. But subdiv AB does not declare that they exhaustively define the content of fair procedure. The subject matter of the Act, the fact that it implements Australia’s international obligations, and the omission of words unambiguously pointing to an intention to exclude all the common law rules of natural justice indicate that the exercise of power under subdiv AB is conditioned on the observance of those rules except where the provisions of the Act specifically supersede them.”

78 In similar vein, Kirby J said (at [181]):

“... because the obligation to conform to the rules of natural justice is so deeply entrenched in the assumptions upon which our law is based, it can normally be treated as implicit in legislation enacted by the Parliament. It would require much clearer words than exist in Subdiv AB to convince me that the provisions of the Code exhaust the applicable rules of natural justice, although not mentioned and however important such requirements might be in the particular case.”

79 Even without going beyond the above passages, I think that subs 357A(1) is exposed as having been intended to legislate into existence the Minister’s submission in Miah, that is to say, to displace the common law requirements of procedural fairness in favour of the protections found in Div 5, and to make the latter an exhaustive statement of those requirements in relation to reviews by the MRT.

80 But there is more. Paragraph 1 of the Explanatory Memorandum was as follows:

“1. The Migration Legislation Amendment (Procedural Fairness) Bill 2002 (‘the Bill’) amends the Migration Act 1958 (‘the Act’) to provide a clear legislative statement that specified ‘codes of procedure’ in the Act are an exhaustive statement of the requirements of the natural justice hearing rule.”

After referring to Miah,the Explanatory Memorandum stated (in par 4) as follows:

“4. The purpose of this Bill is to provide a clear legislative statement that the ‘codes of procedure’ identified in the Bill are an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. The amendments in the Bill apply to the ‘codes of procedure’ in the Act relating to:

· visa applications;

· visa cancellations under sections 109, 116 or 128 of the Act;

· the revocation of certain visa cancellations; and

· the review of decisions by the Migration Review Tribunal (‘the MRT’) and the Refugee Review Tribunal (‘the RRT’).”

81 In addition, the Explanatory Memorandum made further reference to the exhaustive nature of the protections in the Act when addressing the specific amendments. In relation to the proposed subs 357A(1) it stated (at par 27):

“New subsection 357A(1) makes it clear that Division 5 of Part 5 of the Act is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.”

82 Similarly, in the Second Reading Speech the Minister stated (at 1106-1107):

“This bill amends the Migration Act 1958 to provide a clear legislative statement that the ‘codes of procedure’ in the act are an exhaustive statement of the requirements of the natural justice hearing rule.

...

The Migration Reform Act 1992 introduced codes of procedure for dealing fairly, efficiently and quickly with the processing of visa applications.

It also introduced other detailed codes of procedure for the cancellation of visas and the revocation of the cancellation of visas.

In 1998, the codes of procedure for the Migration Review Tribunal and the Refugee Review Tribunal were enhanced.

The purpose of each of these codes is to enable decision makers to deal with visa applications and cancellations fairly, efficiently and quickly.

It was also intended that they would replace the uncertain common law requirements of the natural justice ‘hearing rule’, in particular, which had previously applied to decision makers.

However, last year in the Miah case, the High Court found that the code of procedure relating to visa applications had not clearly and explicitly excluded common law natural justice requirements.

This means that, even where a decision maker has followed the code in every single respect, there could still be a breach of the common law requirements of the natural justice hearing rule.

A further consequence of the High Court’s decision is that there is legal uncertainty about the procedures which decision makers are required to follow to make a lawful decision.

The majority of the court emphasised that parliament’s intention to exclude natural justice must be made unmistakably clear.

It concluded that this intention was not made apparent in relation to the code of procedure for dealing with visa applications.

Therefore, the purpose of this bill is to make it expressly clear that particular codes in the Migration Act do exhaustively state the requirements of the natural justice or procedural fairness hearing rule.

This will have the effect that common law requirements relating to the natural justice or procedural fairness hearing rule are effectively excluded, as was originally intended.” (my emphasis)

Resolution

83 I am inclined to the view, for the reasons given at [53]-[58], contrary to the Minister’s submission, that the expression “the matters it deals with” in subs 357A(1) does require a search to be made of the operative provisions within Div 5 for a provision “dealing with” a relevant “matter”. But I need not resolve this question finally and will proceed on the assumption, favourable to the applicant, that it does.

84 I find it unnecessary, in order to resolve the present issue on the facts of this case, to attempt to identify the full reach of the expression “the matters it deals with” in subs 357A(1). The reason is to be found in subs 360(1) of the Act (set out at [59] earlier) and succeeding provisions in Div 5.

85 Counsel for the Minister accepted, correctly, that it was implicit in those sections that, in the circumstances of a case like the present one, there must actually be a hearing at which the applicant is entitled appear and “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (and see the identical language in par 361(1)(a)): cf the accepted construction of the counterpart of s 360 in Pt 7 of the Act, namely, s 425, in Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [31]; Liu v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 541 at [44]; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 293 at [32]-[39]; VBAB v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 121 FCR 100 at [54]-[62].

86 Accordingly, one of the “matters” which Div 5 “deals with” is the opportunity to be afforded by the MRT to an applicant to address, at a hearing before the MRT, the issues arising in relation to the decision under review. If the presiding Member were to state to an applicant that he or she need not give evidence or present arguments relating to an issue, then later, forgetting this, were to give a decision adverse to the applicant turning on that very issue, the applicant’s entitlement to relief would depend, not on the natural justice hearing rule, but on the question of the proper construction of subs 360(1) and succeeding provisions, because they deal with the “matter” of an applicant’s right to give evidence and to present arguments on “issues arising in relation to the decision under review.”

87 If, at an MRT hearing, the Member were to inform the applicant that it was not necessary for the applicant to give evidence or present arguments on such an issue, which, it transpired, in fact remained alive, and thereby dissuaded the applicant from exercising his or her right to give evidence or to present arguments on that issue, the MRT would have failed to comply with the obligation impliedly imposed on it by s 360 and following sections. The MRT would not, however, have failed to observe the natural justice hearing rule because that rule would have been excluded in the relevant respect by subs 357A(1).

CONCLUSION

88 For the above reasons, the application will be dismissed with costs.

I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated: 29 July 2003

Counsel for the Applicant:	Mr C Jackson

Solicitor for the Applicant:	Johnston Vaughan

Counsel for the Respondent:	Mr M Wigney

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	1 July 2003

Date of Judgment:	29 July 2003

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