FEDERAL COURT OF AUSTRALIA

Moradian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1590

MIGRATION – visa – visa of a kind that could not be granted while applicant in the migration zone – criterion for grant of visa that applicant be ‘employed’ for remuneration for a specified period – information received by decision-maker from source other than applicant – information that work done by applicant was voluntary – whether decision-maker obliged to notify applicant of this information and to give him an opportunity to respond – whether obligation to afford applicant procedural fairness displaced by statutory provisions – whether denial of procedural fairness – whether decision-maker obliged to notify applicant that decision would turn on issue of remuneration – whether decision-maker misconstrued meaning of remuneration

WORDS AND PHRASES – ‘remuneration’

Migration Act 1958 (Cth) ss 338, 56, 57, 5(1), 51A, 359A, 359B, 357A, 424, 424A, 422B, 48, 66(2)(c), 66(3), 425, 474(2), 474(1), 477

Judiciary Act 1903 (Cth) s 39B

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

Migration Regulations 1994 (Cth) Sch 2 item 136, reg 2.26A(7)

Annetts v McCann (1990) 170 CLR 596 applied

Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 82 cited

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 (2001) 206 CLR 57 cited

WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106 considered

NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781 (2003) 130 FCR 456 considered

Wu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1249 distinguished

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

Kioa v West (1985) 159 CLR 550 cited

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 211 CLR 476 cited

D E Austin v AGP Pty Ltd, Australian Industrial Relations Commission, Watson SDP, 17 July 1998, Print No. Q3793

KAIWAN MORADIAN v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 1028 of 2003

GRAY J

6 DECEMBER 2004

MELBOURNE

THE COURT ORDERS THAT:

1.         A writ of certiorari issue, directed to the respondent, removing into this Court the decision of the respondent’s delegate, made on 20 September 2003, to refuse to grant to the applicant a Skilled-Independent visa subclass 136, for the purpose of quashing that decision.

2.         The decision be quashed.

3.         A writ of mandamus be issued, directed to the respondent, requiring him to hear and determine the applicant’s application for a Skilled-Independent visa according to law.

4.         The respondent pay the applicant’s costs of the proceeding.

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

REASONS FOR JUDGMENT

The nature and history of the proceeding

1                     The crucial issue in this case is whether the decision-maker who rejected Mr Moradian’s application for a visa was obliged to afford him procedural fairness.  The visa concerned was of a kind that cannot be granted when the applicant for it is in the migration zone (which, for present purposes, can be equated with being in Australia).  The decision-maker received specific information from a source other than Mr Moradian, and relied on that information to make a finding that was fatal to his application for a visa.  The question is whether the decision-maker should have made the information known to Mr Moradian and given him an opportunity to refute it or to make submissions about it.

2                     Mr Moradian is a citizen of India.  On 26 August 2002, while he was resident in Israel, he applied for a Skilled-Independent visa subclass 136 (‘a subclass 136 visa’), pursuant to the Migration Act 1958 (Cth) (‘the Migration Act’).  His application was considered by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’).  On 20 September 2003, the delegate gave a decision refusing to grant the visa.  Because a visa of the type sought by Mr Moradian could not be granted while the applicant for it was in the migration zone, the decision to refuse it fell outside the definitions of ‘MRT-reviewable decision’ in s 338 of the Migration Act and could not be reviewed by the Migration Review Tribunal.  Mr Moradian therefore applied directly to the Court in respect of the delegate’s decision, seeking relief pursuant to s 39B of the Judiciary Act 1903 (Cth).

The legislation

3                     The criteria for a subclass 136 visa are found in subclass 136 of Sch 2 to the Migration Regulations 1994 (Cth).  Item 136.21 contains criteria to be satisfied at the time of application.  Among those criteria, in item 136.213, appear the following:

‘(1)      Subject to subclause (2), the applicant has been employed in a skilled occupation:

            (a)        if 60 points are specified by Gazette Notice as available for the
                        skilled occupation nominated in the application — for a period
                        of, or for periods totalling, at least 12 months in the period of
                        18 months immediately before the day on which the application
                        was made

...

(2)       Subclause (1) does not apply to an applicant who has, in the 6 months immediately before the day on which the application was made, completed a degree, diploma or trade qualification for award by an Australian educational institution as a result of at least 1 year of full-time study in Australia.’

4                     Item 136.411 provided that an applicant must be outside Australia when the visa is granted.

5                     By item 136.111, the word ‘employed’ is defined as having the same meaning as in reg 2.26A(7) of the Migration Regulations.  Regulation 2.26A(7) provides that:

‘employed means engaged in an occupation for remuneration for at least 20 hours weekly.’

6                     The word ‘remuneration’ is not defined. 

7                     Section 56(1) of the Migration Act provides:

‘In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.’

8                     Section 57 of the Migration Act provides:

‘(1)      In this section, relevant information means information (other than
            non-disclosable information) that the Minister considers:

            (a)        would be the reason, or a part of the reason, for refusing to
                        grant a visa; and

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

            (c)        was not given by the applicant for the purpose of the
                        application.

(2)       Subject to subsection (3), the Minister must:

            (a)        give particulars of the relevant information to the applicant in
                        the way that the Minister considers appropriate in the
                        circumstances; and

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

            (c)        invite the applicant to comment on it.

(3)       This section does not apply in relation to an application for a visa
            unless:

            (a)        the visa can be granted when the applicant is in the migration
                        zone; and

            (b)        this Act provides, under Part 5 or 7, for an application for
                        review of a decision to refuse to grant the visa.’

9                     The phrase ‘migration zone’ is defined in s 5(1) of the Migration Act.  It is unnecessary to go to the full terms of the definition.  For present purposes, it may be taken that a subclass 136 visa is a visa that cannot be granted while the applicant for it is in the migration zone.

10                  Sections 56 and 57 are found in subdiv AB of Div 3 of Pt 2 of the Migration Act.  Subdivision AB also now contains s 51A, subs (1) of which provides:

‘This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.’

11                  It should be noted that ss 56, 57 and 51A of the Migration Act have equivalent, but not identical, provisions in ss 359A, 359B and 357A respectively of the Migration Act, dealing with the exercise of the powers of the Migration Review Tribunal, and ss 424, 424A and 422B of the Migration Act, relating to the exercise of powers by the Refugee Review Tribunal.

The facts

12                  In his application for a visa, submitted through a migration agent in Australia, Mr Moradian sought to satisfy the requirement that he had been employed in a skilled occupation for at least 12 months in the period of 18 months immediately before the day on which his application was made by stating that, from March 2000 until August 2002, he had been employed at the Bahá’í World Centre in Haifa, Israel.  As part of his application, he forwarded a letter dated 24 July 2002 from the Bahá’í World Centre Office of Personnel in Haifa, which recorded that he had been employed at that centre from 23 March 2000 as an accountant.  The letter gave information as to the duties performed by Mr Moradian.  It said nothing about remuneration. 

13                  While Mr Moradian’s application for a visa was being processed, correspondence passed between the Minister’s delegate and Mr Moradian’s migration agent.  By letter dated 12 June 2003, the migration agent forwarded to the delegate an Indian police clearance and requested advice if there were any documents required or if Mr Moradian could proceed with a medical examination.  By letter dated 24 June 2003, the delegate requested that Mr Moradian undergo a medical examination.  The delegate also reminded Mr Moradian that he was required to notify any change in his circumstances since the application was made.  By letter dated 6 August 2003, the migration agent advised that Mr Moradian was by then in Australia, and provided an address in New South Wales.  Enclosed with that letter were various documents, including evidence of Mr Moradian having undergone a medical examination.  Also among the documents forwarded was the required form notifying changes in circumstances.  These included a change of employment from the Bahá’í World Centre in Haifa to the Bahá’í National Office in New South Wales.  By letter dated 29 August 2003, the Minister’s delegate requested further information and documents.  This letter advised Mr Moradian:

‘I am pleased to inform you that your application for migration to Australia is likely to be successful subject to the decision maker being satisfied that you are entitled to a visa.

…

It is intended that, if granted, the initial entry date will be until

            30 May 2004

and you must depart and re-enter Australia by that date.  The validity of the visa, once granted, cannot be extended.

Note that as you are in Australia, you must be outside Australia when the visa is granted.  You should now provide details of your travel itinerary to advise of your date of departure from Australia.

…

**YOU HAVE NOT YET BEEN GRANTED A VISA.  YOU SHOULD NOT GIVE UP YOUR JOB, DISPOSE OF PROPERTY OR MAKE OTHER ARRANGEMENTS UNTIL NOTIFIED THAT A VISA HAS BEEN GRANTED.’

14                  By letter received by the Minister’s delegate on 4 September 2003, Mr Moradian advised that he would be departing for India on 11 September 2003.  He attached documents requested in the letter of 29 August 2003. 

15                  In the meantime, without any knowledge on the part of Mr Moradian, the Minister’s delegate had apparently taken steps to establish that the letter from the Bahá’í World Centre Office of Personnel, dated 24 July 2002, which accompanied the application, was genuine. 

16                  Apparently in response to a request for verification, an officer of the Department of Foreign Affairs and Trade sent an email on 29 August 2003, which was forwarded to the Minister’s delegate on 1 September 2003.  The email read:

‘REFERRAL DATED FRIDAY, 27, JUNE 2003

Verification of employment letter from Bahai [sic] World Centre dated July 24, 2002

Today, July 17, I spoke to Lua Estafanos who is the Personnel Officer and also deals with the departure of staff from the centre.

She authenticates the contents of the employment letter dated July 24, 2002.  She states that Applicant’s last date of employment was June 8, 2003.  He worked approximately 44 hours per week on a voluntary basis.’

17                  In the written decision, dated 20 September 2003, the Minister’s delegate informed Mr Moradian:

‘Your application including employment references show that you were serving in the capacity of Accountant with the Bahai [sic] World Centre in Israel for this period of time.  There were [sic] no other employment declared for this period of time.  Checks instigated by the department reveal that your service to the Bahai [sic] World Centre was on a voluntary basis. As you were not remunerated for your service, it does not satisfy Reg 2.26A and so cannot be counted toward satisfying Reg 136.213(1).

As you fail to satisfy Reg 136.213(1) or (2) you fail to satisfy Reg 136.213, As this is an essential criteria for grant of a subclass 136 visa, I must refuse the grant of a subclass 136 visa to you.’

18                  After this decision was communicated to Mr Moradian, the Bahá’í World Centre Office of Personnel supplied further information in the following terms:

‘Mr. Kaiwan Moradian came to the Bahá’í World Centre from March 2000 to June 2003 to perform voluntary religious service at the international headquarters of the Bahá’í Faith in Haifa, Israel.  While this service carries no remuneration consisting of wages or salary, housing is provided free of charge, as are health care and housekeeping expenses including food.  The average cost of these provisions is US $13,670 per year.  In addition, each person is provided with cash allowances to cover expenses related to clothing. [sic] holiday and minor personal expenses in the following amounts.

General allowance:    US $1,580 per year

Clothing allowance:   US $1.200 per year

Travel allowance:       US $3,550 per year

The total amount that Mr. Moradian was provided with each year was therefore approximately US$20,000.’

19                  By letter dated 13 November 2003, the National Spiritual Assembly Of The Bahá’ís Of Australia Incorporated Secretariat forwarded to the Minister’s delegate the letter from the Bahá’í World Centre Office of Personnel and confirmed that Mr Moradian, as a volunteer at the Bahá’í World Centre, received various benefits totalling approximately US$20 000 per annum.

20                  In an affidavit filed in this proceeding, Mr Moradian swore that he had the ability to provide evidence that, during his employment at the Bahá’í World Centre, he received remuneration of approximately US$20 000, if he had been provided with an opportunity prior to the decision of the Minister’s delegate. 

The issues in the proceeding

21                  The primary basis for Mr Moradian’s case in this proceeding is that he was denied procedural fairness, in that he was not given an opportunity to deal with the adverse material, which the Minister’s delegate received, and on which the decision against him was based.  That is, the material in the email dated 29 August 2003, that Mr Moradian’s service to the Bahá’í World Centre was on a voluntary basis.  Mr Moradian contended that the obligation to afford him procedural fairness survived the enactment of s 51A of the Migration Act.  Another denial of procedural fairness on which Mr Moradian relied was the contention that the Minister’s delegate was obliged to bring to his attention the crucial matter on which the decision was to turn, namely the question whether Mr Moradian’s employment with the Bahá’í World Centre involved remuneration, and to give him an opportunity to deal with this issue.  An alternative basis on which Mr Moradian’s case was put was to suggest that the Minister’s delegate had erred in law by misconstruing the meaning of the word ‘remuneration’ in reg 2.26A(7) of the Migration Regulations and had thereby failed to perform the statutory duty of considering the application for a visa.

22                  The respondent contended that there never was any obligation on the Minister’s delegate to afford procedural fairness to Mr Moradian, because he was an offshore applicant, with whom the statutory provisions dealt differently from onshore applicants.  If there had been a duty to afford procedural fairness, it was now abolished by s 51A of the Migration Act when that provision is properly construed.  In any event, the respondent contended that there had been no denial of procedural fairness.  The respondent also contested the proposition that the Minister’s delegate had misconstrued the meaning of ‘remuneration’.

Procedural fairness

23                  The starting point for any consideration of the applicability of the principles of procedural fairness (as the principles of natural justice are now commonly called) to the exercise of a statutory decision-making power is the proposition expressed by Mason CJ, Deane and McHugh JJ in Annetts v McCann (1990) 170 CLR 596 at 598:

‘It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate 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 was 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’.

24                  In Re Refugee Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 82, the High Court held that, despite clear provisions then contained in the Migration Act, preventing this Court from reviewing decisions of Tribunals under the Migration Act on the ground of denial of procedural fairness, such a denial remained a ground for the application for relief under s 75(v) of the Constitution in respect of such decisions.  In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 (2001) 206 CLR 57, the High Court held that the rules of procedural fairness were applicable to delegates of the Minister in considering applications for visas in the exercise of powers under the Migration Act.  The High Court held that the limited provisions of subdiv AB of Div 3 of Pt 2 of the Migration Act, including s 57, were insufficient to exclude those principles.  As McHugh J said at [127] – [128]:

‘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.’ [Footnotes omitted]

25                  It must therefore be accepted that an applicant for a visa has a sufficient right, interest or legitimate expectation to give rise to a duty on the part of the Minister’s delegate to afford him or her procedural fairness, unless ‘plain words of necessary intendment’ to displace such a duty are to be found within the Migration Act. 

26                  Apart from s 51A of the Migration Act, to which I shall return, no such plain words are to be found.  Counsel for the respondent suggested that there were provisions of the Migration Act that disclosed a legislative intention to exclude offshore applicants from any entitlement to procedural fairness.  He referred to s 48.  That section restricts the classes of visas for which a non-citizen in the migration zone who has been refused a visa, or whose visa has been cancelled, may apply.  It does not apply to an applicant outside the migration zone.  An applicant outside the migration zone may therefore simply make another application in the event of a refusal.  Further, the combination of s 66(2)(c) and s 66(3) deprives an applicant for a visa that cannot be granted while the applicant is in the migration zone of any right to written reasons for an adverse decision.  There can be little doubt that these provisions do not display the necessary plainness, nor the necessary ‘intendment’ to exclude the principles of procedural fairness.  The ability to make a further application, perhaps providing information that would have been provided if the requirement for it had been made known, is an advantage in some respects, but it is a disadvantage in others.  It might be productive of delay and additional expense, especially if there is a fee payable upon each application for a visa.  In addition, the duty to give reasons, usually imposed expressly on a decision-maker by statute, is not recognised as an aspect of the principles of procedural fairness.  Its absence is certainly no substitution for, and is not inconsistent with, a right to a fair hearing.

27                  In addition, what constitutes an ‘offshore applicant’ for the purposes of this argument is by no means clear.  Section 48 applies to a non-citizen in the migration zone.  Section 66(2)(c) and (3) exclude from the obligation to give reasons applicants for certain types of visas, namely those which cannot be granted while the applicants for them are in the migration zone.  An applicant for such a visa may or may not be within Australia at the time when the application is made; the only requirement, in the case of an applicant who is in Australia is that he or she leave before the decision to grant a visa is made.  As the present case shows, an applicant may enter Australia (presumably with another type of visa) while his or her application for a relevant visa, made from outside Australia, is in the course of being processed.  The relevant provisions of the Migration Act disclose no intention to make the application of the principles of procedural fairness dependent upon where a particular applicant is at a particular time.  It cannot be the case that no duty of procedural fairness is owed to a person who happens to be outside the country, but a duty comes into existence if the person is within the country.  The notion that there is a distinction between onshore and offshore applicants for this purpose is unsustainable. 

28                  Section 51A(1) of the Migration Act does clearly intend to displace the principles of procedural fairness in some respects.  The question is to what extent does it operate to do so?  It is a difficult provision to construe.  The particular difficulty is caused by the choice of the words ‘in relation to the matters it deals with.’  These words do qualify the words that precede them.  They make plain an intention that subdiv AB of Div 3 of Pt 2 of the Migration Act is not to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to every facet of that rule, but only in relation to the matters with which the provisions of subdiv AB deal.  The question in the present case is how those matters are to be characterised?  Counsel for Mr Moradian argued that, because of the exclusionary provision in s 57(3), the matter with which that section deals is the right to be notified, and to comment upon or to refute, relevant adverse information in relation to an application for a visa of a kind that can be granted when the applicant is in the migration zone.  The matter of the right to be notified of, and to comment upon or to refute, relevant adverse information in relation to an application for a visa that cannot be granted when the applicant is in the migration zone is not dealt with.  Counsel for the Minister argued that the matter dealt with in s 57 is the right to be notified of, and to comment upon or to refute, relevant adverse information in relation to applications for visas.  The exclusion in respect of visas that cannot be granted when the applicant is in the migration zone is part of that matter. 
On this basis, s 51A would be effective to remove any such right at all in respect of an applicant for a visa that cannot be granted while the applicant is in the migration zone.

29                  There is a limited number of authorities in relation to the proper construction of ss 51A, 357A and 422B of the Migration Act.  In WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106, at [57], French J said in relation to s 422B:

‘The question that follows is whether s 422B precludes the application of procedural fairness in this context.  Section 422B  provides that Division 4 of Part 7 is “taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”.  The “natural justice hearing rule” is not defined.  It is not necessary for present purposes to attempt an exhaustive definition.  It can be said, for present purposes, to reflect those aspects of the requirements of procedural fairness that relate to the presentation of an applicant’s claims to the Tribunal.  Division 4 therefore may be taken to be exhaustive of those aspects of the requirements of procedural fairness “in relation to the matters it deals with”.  This latter phrase imports a somewhat more specific limitation upon the scope of procedural fairness than might have been achieved by a global reference to the conduct of reviews by the Tribunal.  The “matters” Division 4 deals with are therefore to be identified by reference to its particular provisions and not by reference to its general subject matter, ie the conduct of reviews by the Tribunal.  Section 424A, the closest relevant provision, which relates to the opportunity to comment on adverse information, does not deal with the matter raised in this case.’

30                  The matter raised in that case was the failure of the Refugee Review Tribunal to give an applicant an opportunity to comment on matters relating to the appearance of certain documents before the Tribunal found, relying on those matters, that the documents had been concocted.  French J held that either the raising of this issue by the Tribunal fell within the requirement of s 425 of the Migration Act that the Tribunal invite the applicant to give evidence and to present arguments at a hearing, in which case there was jurisdictional error because of a failure to comply with this statutory obligation, or it did not, in which case there was a requirement of procedural fairness in relation to the issue, not excluded by s 422B. 

31                  A different view appears to have been expressed by Lindgren J in NAQF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 781 (2003) 130 FCR 456 in relation to s 357A(1) of the Migration Act.  At [59], his Honour said that the expression ‘the matters it deals with’ must have been intended to refer to something wider than the exact text of the enacted procedural requirements.  Otherwise the expression would be superfluous.  His Honour referred to ss 15AA and 15AB of the Acts Interpretation Act 1901 (Cth) (‘the Acts Interpretation Act’).  At [80] – [82], his Honour set out conveniently the relevant passages from the explanatory memorandum accompanying the Migration Legislation Amendment (Procedural Fairness) Bill 2002 which, upon its passage, inserted into the Migration Act ss 51A, 357A and 422B.  At [79], Lindgren J characterised the purpose of s 357A(1) as being to legislate into existence the Minister’s submission in Miah, ie to displace the common law requirements of procedural fairness in favour of the specific statutory protections and to make them an exhaustive statement of those requirements.  At [83], his Honour was inclined to the view that the phrase ‘the matters it deals with’ in s 357A(1) requires a search to be made of the operative provisions for a provision ‘dealing with’ a relevant ‘matter’.  As his Honour characterised the issue at [60], the question is how much larger than the specific subject matter of such a provision is the matter in respect of which the provision is an exhaustive statement?  NAQF was a case in which the complaint was that the Migration Review Tribunal had led the applicant into believing that the bridging visa he sought would be granted, and the only question was as to the content of the conditions to be attached to it, thereby inducing the applicant not to provide additional evidence and submissions available to him.  Lindgren J dismissed the application based on this argument, without relying on his view as to the meaning of s 357A, which was therefore obiter. 

32                  In Wu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1249, Hely J dealt with a case that raised the question of the meaning of s 51A of the Migration Act.  This was a case in which the relevant delegate of the Minister had engaged in a comparison of information provided by the applicant in two different applications for a particular visa, one being the application with which the delegate was dealing.  At [16], his Honour expressed the view that it was ‘fundamentally unfair’ for the delegate to reject the application on the basis of the comparative exercise without giving the applicant the opportunity of answering the case against him in this respect.  At [19], his Honour referred to the explanatory memorandum and the second reading speech relating to the relevant bill, as showing that the purpose or object of the amending Act was to overcome the decision in Miah.  At [21], his Honour referred to NAQF.  At [22] – [23], Hely J said:

‘Section 57 of the Act is also an exhaustive statement of the circumstances in which a visa applicant is entitled to be informed of, and to have an opportunity of commenting on, information known to the Minister or his delegate which might be adverse to the visa application.  Section 57 replaces what would otherwise have been the requirement of the common law hearing rule in this respect.  Section 57 did not oblige the Minister to acquaint the applicant with the comparative exercise undertaken by the Minister’s delegate as neither s 57(3)(a) or (b) was satisfied, hence s 57(2) had no relevant application.

The legislature cannot have intended the displacement of the natural justice hearing rule to be confined to cases in which the Minister must provide information pursuant to s 57(2).  The legislature cannot have intended that the common law hearing rule would continue to apply in circumstances where s 57 did not require the provision of information to an applicant, such as country information (s 57(1)(b)), or information in relation to a visa which can only be granted whilst the applicant is offshore (s 57(3)): see NAQF (supra) at [59] – [60].’

33                  To the extent to which Wu is authority for the view that would support the Minister’s submission in the present case, it does not appear that Hely J considered a submission of the kind put on behalf of Mr Moradian in the present case.  That is to say, his Honour does not appear to have given close consideration to the question how the ‘matter’ with which s 57 deals is to be defined.  Rather, his Honour seems to have assumed that the relevant ‘matter’ was to be defined in general terms, along the lines of those suggested by Lindgren J in NAQF, rather than in the specific terms of the section, as suggested by French J in WAJR.  For this reason, I am not inclined to regard myself as bound by the reasoning in Wu to reach the same conclusion.  So far as the reasoning in Wu concerned s 57(1)(b), it does derive support from the judgment of French J in WAID v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 220 at [49] – [58], in which French J recognised that s 422B would require further exploration in terms of its construction and the identification of the ‘matters’ to which it applies. 

34                  I therefore take the view that the question of characterisation of the relevant ‘matter’, for the purposes of the present case, cannot be answered directly by reference to existing authority. 

35                  It may be accepted that, in accordance with s 15AA of the Acts Interpretation Act, a construction favouring the underlying purpose or object of the Migration Act is to be preferred to a construction that would not promote that purpose or object.  It may also be accepted that the purpose or object of s 51A(1) of the Migration Act was that identified by the second reading speech in support of the bill by which the Minister sought to introduce s 51A(1) as being to overcome the decision of the High Court in Miah.  It may be accepted that s 51A(1) is an ambiguous provision, because of the different views that might be taken as to the characterisation of the relevant ‘matters’, and that therefore resort can be had to extrinsic materials pursuant to s 15AB of the Acts Interpretation Act.  The difficulty is that neither the explanatory memorandum nor the second reading speech (and neither counsel referred to any other secondary material in this context) resolves the ambiguity.  Nor is the general statement of purpose found in those documents sufficient to answer the specific question as to the approach to be taken to the characterisation of the ‘matter’ with which s 57 of the Migration Act deals.

36                  In my view, it is necessary to return to the fundamental principle, articulated in Annetts v McCann, that the principles of procedural fairness can only be excluded by ‘plain words of necessary intendment’.  In this respect, so far as the present case is concerned, s 51A(1) may be viewed as containing ‘indirect references, uncertain inferences or equivocal considerations’, which do not disclose an intention on the part of the legislature to exclude the principles of procedural fairness with sufficient certainty. 

37                  For these reasons, I accept the submission of counsel for Mr Moradian that the Minister’s delegate owed to Mr Moradian a duty to afford him procedural fairness.  It is therefore necessary to determine, in accordance with the usual principles, whether this case involved a denial of procedural fairness. 

Denial of procedural fairness

38                  There can be no doubt that, in the ordinary case, a decision-maker is obliged to give to a party affected by the decision an opportunity ‘to deal with adverse information that is credible, relevant and significant to the decision to be made.’  See Kioa v West (1985) 159 CLR 550 at 629 per Brennan J.  In the present case, the statement in the email of 29 August 2003, to the effect that Mr Moradian’s service at the Bahá’í World Centre was on a voluntary basis, fell within this class of information.  Having regard to the fact that it emanated from an officer of the Department of Foreign Affairs and Trade, it could reasonably be regarded as credible.  It purported to be information obtained from a source that could be expected to provide accurate information.  The Minister’s delegate certainly regarded it as credible, by not disregarding it.  The information was plainly relevant.  Although perhaps ambiguous, the statement that Mr Moradian’s service was voluntary clearly went to the question whether he received remuneration, within the meaning of reg 2.26A(7) and therefore whether he was ‘employed’ at the Bahá’í World Centre, for the purposes of item 136.213(1)(a) of Sch 2 to the Migration Regulations.  The Minister’s delegate certainly treated it as relevant.  It was undoubtedly significant to the decision to be made.  The Minister’s delegate acted on it.  It was the only information available to the Minister’s delegate to support the decision that Mr Moradian’s service to the Bahá’í World Centre did not constitute employment for the purposes of the relevant criterion. 

39                  In these circumstances, there can be no doubt that the principles of procedural fairness required that the Minister’s delegate should give notice to Mr Moradian that there was information suggesting that his service with the Bahá’í World Centre was voluntary.  No practical considerations stood in the way of the giving of such notice.  Indeed, a note on Mr Moradian’s advice of his proposed itinerary, to take  him out of Australia on 11 September 2003, suggests that the Minister’s delegate contacted Mr Moradian’s migration agent on 2 September.  The note is in the following terms:

‘Rang migration agent & advised that

- something’s come up

- I need to look at the application a little more closely

- suggest applicant do not depart on 11/9/03

- agent contact applicant re this.’

40                  There appears to be no reason why the Minister’s delegate could not have acquainted the migration agent with the relevant information and provided Mr Moradian with an opportunity to deal with it.  Mr Moradian would have been in a position to explain the situation and to provide the Minister’s delegate with the detail of what he had received.  He would also have been in a position to make submissions that what he had received amounted to remuneration.  In the circumstances, there was significant unfairness to Mr Moradian in what occurred.  A failure to give Mr Moradian notice of the information that his service was voluntary amounted to a denial of procedural fairness on the part of the Minister’s delegate.

41                  Mr Moradian also put the case on the basis that the Minister’s delegate was obliged by the principles of procedural fairness to notify him of the issue on which the decision would turn, namely whether his service with the Bahá’í World Centre was without remuneration, and to give him an opportunity to deal with this submission.  In Aala at [101], McHugh J said:

‘One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person’s rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided.  It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding (164) Mahon v Air New Zealand Ltd [1984] AC 808 at 820-821.’

42                  In my view, the present case was one belonging to the second category in the dichotomy to which McHugh J referred, namely a case in which the risk necessarily inhered in the issues to be decided.  It was a case in which Mr Moradian, assisted by his migration agent, had available to him the criteria which he needed to satisfy in order to obtain the visa he sought.  A reading of item 136.213(1)(a) in Sch 2 to the Migration Regulations, coupled with the definition of ‘employed’ in item 136.111 and the definition in subreg 2.26A(7), would have disclosed that Mr Moradian needed to satisfy the requirement that he had been employed in a skilled occupation for at least 12 months in the preceding 18 months by showing that he had been engaged in such an occupation for remuneration for at least 20 hours weekly.  If he failed to establish that he had received remuneration, he could not be granted the visa.  Mr Moradian took a substantial risk in not dealing at all with the question of remuneration in the material he provided in support of his visa application.  It was no part of the duty of the Minister’s delegate to draw attention to the deficiency in Mr Moradian’s material, for the purpose of prompting him to make up that deficiency.  The Minister’s delegate was not obliged to ask Mr Moradian for further information.  The only obligation was to bring to Mr Moradian’s attention information received from another source on which the Minister’s delegate proposed to rely.

43                  In the absence of the information in the email of 29 August 2003, the Minister’s delegate might have been faced with a difficulty in determining whether Mr Moradian had satisfied the requirement of showing that his employment was for remuneration.  On the one hand, in the absence of any information, the Minister’s delegate would have been entitled to say that the criterion had not been satisfied.  On the other hand, the Minister’s delegate would have been equally entitled to presume that service of the kind rendered by Mr Moradian for the Bahá’í World Centre would not ordinarily go unremunerated, and to reach the conclusion that the criterion was satisfied.  It was the information in the email of 29 August 2003 that made it easy for the decision to be made.  This analysis underlines the importance of that information and demonstrates the reason why it needed to be made known to Mr Moradian.

44                  I am therefore of the view that Mr Moradian has made out his case that the Minister’s delegate denied him procedural fairness by failing to notify him of the information in the email of 29 August 2003 that his employment with the Bahá’í World Centre was voluntary, and to give him an opportunity to demonstrate that he had in fact received sums of money and other benefits in return for his service.  A denial of procedural fairness is a jurisdictional error, sufficient to render the decision of the Minister’s delegate to refuse to grant the visa other than ‘a decision...made...under this Act’ for the purposes of the definition of ‘privative clause decision’ in s 474(2) of the Migration Act.  This means that s 474(1) of the Migration Act does not prevent the Court from granting relief of a kind sought in this proceeding in respect of the decision.  It also means that the time limits for an application, prescribed by s 477 of the Migration Act, do not apply.  It therefore does not matter that Mr Moradian made his application outside the time that would otherwise have been applicable.  See generally Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 211 CLR 476.

The meaning of ‘remuneration’

45                  Counsel for Mr Moradian also attempted to argue that the Minister’s delegate had made an error of law in construing the word ‘remuneration’ in reg 2.26A(7) of the Migration Regulations and that that error amounted to a jurisdictional error.  It appears clear that the Minister’s delegate regarded the word ‘voluntary’ in the email of 29 August 2003 as meaning ‘without payment’, rather than ‘without compulsion’.  This was not an error of law.  To the extent to which the word is ambiguous, the context in which it appeared suggested that it bore the meaning adopted by the Minister’s delegate.  It is no error of law to say that employment for which no payment is received is employment without remuneration.  The argument must fail.

46                  Counsel for the Minister sought to argue that, even if the Minister’s delegate had had available all of the information which Mr Moradian could have supplied about the payments and other benefits he received from the Bahá’í World Centre, the Minister’s delegate could not have found that there was remuneration involved.  Counsel for the Minister relied on D E Austin v AGP Pty Ltd, a decision of Senior Deputy President Watson of the Australian Industrial Relations Commission on 17 July 1998, found in the Commission’s Print No. Q3793.  The question in that case was whether an employee’s remuneration exceeded the maximum amount beyond which he could not proceed in the Commission in respect of the termination of his employment.  The crucial element was an allowance paid to the employee for business usage of his private vehicle.  As the amount paid only partly reimbursed the employee for the cost of providing his vehicle for business purposes, Senior Deputy President Watson found that the allowance was for reimbursement of expenses and did not form part of the employee’s remuneration.  Such a decision forms no adequate basis for the argument that the provision of free housing, health care, and housekeeping expenses including food, together with a ‘general allowance’, a clothing allowance and a travel allowance could not amount to remuneration.  If the Minister’s delegate had been in possession of the information as to what Mr Moradian received, the conclusion certainly could, and probably should, have been that he was receiving remuneration from the Bahá’í World Centre. 

Conclusion

47                  For the above reasons, I am of the view that the decision of the Minister’s delegate was attended by jurisdictional error.  That error was a denial of procedural fairness to Mr Moradian in failing to notify him of the information that his service was voluntary, and to give him an opportunity to provide further evidence and to make submissions about that information.  Such a jurisdictional error forms the basis for the grant of relief of the kinds sought by Mr Moradian in this proceeding.  Mr Moradian seeks the issue of a writ of certiorari, removing the decision into the Court to be quashed, and an order setting it aside.  He also seeks mandamus, directed to the respondent, to reconsider the application for the visa according to law.  These are discretionary remedies.  I do not consider that I should exercise my discretion against Mr Moradian in the present case.  The fact that it would be open to him to apply again for the visa he seeks is not a sufficient ground for the exercise of the discretion.  As I have said, a further application has the potential to produce delay and expense. 

48                  I should therefore grant the orders that Mr Moradian seeks.  No reason was advanced, and none appears, why the Minister should not pay Mr Moradian’s costs of the proceeding.  In accordance with the usual rule, that costs follow the event, such an order should be made. 

Associate:

Dated:              6 December 2004