Saeed v Minister for Immigration and Citizenship

• Jurisdiction: Australia Federal only
• Judge: French CJ,Gummow,Hayne,Crennan,Kiefel JJ,Heydon J.
• Judgment Date: 23 June 2010
• Neutral Citation: 2010-0623 HCA A,[2010] HCA 23
• Docket Number: S305/2009
• Date: 23 June 2010
• Court: High Court

[2010] HCA 23

HIGH COURT OF AUSTRALIA

French CJ Gummow, Hayne, Heydon, Crennan And Kiefel JJ

S305/2009

Amira Saeed

Appellant

and

Minister For Immigration And Citizenship

Respondent

Representation

S B Lloyd SC with L J Karp for the appellant (instructed by Christopher Levingston & Associates)

S J Gageler SC, Solicitor-General of the Commonwealth with L A Clegg for the respondent and intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

R J Meadows QC, Solicitor-General for the State of Western Australia with C L Conley intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor for Western Australia)

M G Hinton QC, Solicitor-General for the State of South Australia with C Jacobi intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for the State of South Australia)

Migration Act 1958 (Cth), ss 51A(1), 56, 57, 65(1).

Saeed v Minister for Immigration and Citizenship

Immigration — Visa — Visa applications made outside migration zone — Where applicant not afforded opportunity to comment upon information which supported inference that essential aspect of application was false or misleading — Where Minster's delegate not satisfied about necessary criterion for visa on basis of such information — Whether ss 51A(1) or 57(3) of Migration Act 1958 (Cth) (‘Act’) excluded requirements of natural justice hearing rule in relation to visa applications made outside migration zone — Whether provision of information to visa applicants outside migration zone was a ‘matter’ which Pt 2 Div 3 subdiv AB of Act ‘deals with’ — Whether requirements of natural justice a condition of statutory power to grant or refuse visa — Where statutory requirement of actual satisfaction as to facts — Whether obligation to take into account all factors which may affect determination — Whether state of non-satisfaction about criterion can be reached if Minister fails to consider whether any answer to information was put forward by applicant.

Statutory interpretation — Where amendments to Act respond to High Court decision — Relevance and permissible use of extrinsic material.

Words and phrases — ‘natural justice hearing rule’, ‘satisfied’, ‘the matters it deals with’.

ORDER

• 1. Appeal allowed with costs.

• 2. Set aside the order of the Full Court of the Federal Court of Australia made on 1 April 2009 and in its place order that:

  • (a) Appeal allowed with costs.

  • (b) Set aside Orders 2 and 3 of the orders of the Federal Magistrates Court of Australia made on 2 December 2008 and in their place order that:

    • (i) a writ of certiorari issue directed to the delegate of the respondent, quashing the decision dated 16 July 2008;

    • (ii) a writ of prohibition issue directed to the respondent, prohibiting the respondent from giving effect to the delegate's decision dated 16 July 2008;

    • (iii) a writ of mandamus issue to the respondent requiring the respondent to consider and determine the applicant's application for a Skilled — Independent Visa (Subclass 175) according to law; and

    • (iv) the respondent pay the applicant's costs.

1 French CJ, Gummow, Hayne, Crennan And Kiefel JJ. Division 3 of Pt 2 the Migration Act 1958 (Cth) (‘the Act’) contains provisions with respect to the grant or refusal of visas for non-citizens. Subdivision AB of that Division is directed to the Minister's dealing with an application for a visa and information relating to it. At issue in this appeal is whether an amendment to subdiv AB, effected by the insertion of s 51A 1, has the effect of excluding the requirements of the natural justice hearing rule and whether it may validly do so. In the circumstances of this case the rule would have required the Minister's delegate to afford the appellant an opportunity to comment upon information which had been provided to the delegate and which supported an inference that an essential aspect of the appellant's case for a visa was false.

2 The terms of s 51A are not directed to all requirements of natural justice. They are expressed to apply to the requirements of the natural justice hearing rule. The concern of that rule is that procedural fairness be applied in the process of decision-making in circumstances where a person's rights or interests may be affected by the decision. Applied to a case such as this, the rule requires that an opportunity be given to a person to deal with adverse information that is credible, relevant and significant to the decision to be made 2. It reflects a fundamental principle of natural justice.

3 Section 51A provides:

‘ Exhaustive statement of natural justice hearing rule

• (1) 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.

• (2) Sections 494A to 494D, in so far as they relate to this Subdivision, 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 focus of this appeal is upon s 51A(1).

Background and curial history

4 The appellant is a citizen of Pakistan. In November 2007 she applied for a Skilled — Independent Visa (Subclass 175). A visa of this kind can only be granted if the visa applicant is outside Australia when the visa is granted 3. A criterion for the visa required the appellant to have been employed in a skilled occupation for at least 12 months in the period of 24 months ending immediately before the day on which her application was made 4. The appellant provided documents to demonstrate that she had been employed as a cook from March 2006 until November 2007 at a restaurant in Rawalpindi.

5 Australian immigration officers in Pakistan investigated the appellant's claims and discovered that no employee records were kept on the premises of the restaurant. They were advised that no woman had ever worked in the kitchen. On the basis of this information the Minister's delegate advised the appellant that she considered the evidence the appellant had supplied as to her employment to have been false or misleading. As the delegate then considered she could not be satisfied about a criterion necessary to grant the visa, the appellant's application was refused.

6 The delegate's decision was not subject to review by the Migration Review Tribunal. Such review is limited to the case of visas which can be granted whilst an applicant is in the Australian migration zone 5. The appellant sought a declaration and an order for mandamus against the Minister under s 39B of the Judiciary Act 1903 (Cth). The ground upon which she relied was that the delegate failed to afford her what would be required under the natural justice hearing rule.

7 In the Federal Magistrates Court 6 and on the appeal to a Full Court of the Federal Court 7 the decision in Minister for Immigration and Multicultural and Indigenous Affairs v Lat8 (‘ Lay Lat’) was followed. The appellant's application and her appeal were dismissed with costs. In Lay Lat a Full Court of the Federal Court held that it was intended, by s 51A(1), to exclude the common law natural justice hearing rule and that subdiv AB was to provide a comprehensive procedural code 9.

8 The appellant's principal argument on the appeal to this Court had regard to the construction of subdiv AB of the Act and the operation of s 51A(1) with respect to provisions of that subdivision. If that argument is accepted it will be unnecessary to consider the alternative argument, that s 51A is invalid. This argument was put on two bases. It was put that some fundamental principles are impliedly protected by s 75(v) of the Constitution and a law cannot validly prevent recourse to that provision. Further, s 51A may be seen to direct courts and interfere with their application of principles of statutory construction and thereby undermine their ability to exercise the judicial power granted by Ch III of the Constitution.

The power to grant or refuse a visa and subdivision AB

9 The power to grant a visa to a non-citizen to travel to, enter and remain in Australia is given to the Minister by s 29 of the Act. Section 47(1) requires the Minister to consider a valid application for a visa. That obligation continues until the visa is either granted or refused 10. Section 65(1) provides that after considering a valid application for a visa, the Minister, if satisfied that the criteria for the visa have been satisfied, is to grant the visa; and if not so satisfied, is to refuse to grant the visa.

10 Subdivision AB concerns how an application for a visa is dealt with after it is lodged and before a decision is made. Section 52 provides for the way in which a visa applicant may communicate with the Minister after lodging an application. Sections 54 and 55 require the Minister to have regard to information forming part of the application, or which is provided subsequently, but prior to a decision being made. Sections 56 and 57, which assume importance on the appeal and are set out below, provide, respectively, that further information may be sought from a visa applicant and that certain information received by the Minister must be provided to a visa applicant for comment. Section 58 makes provision for how the additional information, invited under s 56, or the comment on relevant information, invited under s 57, may be given. Section 63 provides for the time when a decision may be made, having regard to whether invitations for information or comment are outstanding.

A condition on the power to refuse

11 In Annetts v McCann11 it was said that it could now be taken as settled that when a statute confers power to destroy or prejudice a person's rights or interests, principles of natural...