Case: Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCA 61 ; (2006) 151 FCR 214
Outcome: followed
The terms of s 422B in its original form are somewhat unclear. However their meaning was settled by the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Lat [2006] FCA 61 ; (2006) 151 FCR 214. In that case the Court adopted the reasoning of Heerey J in the earlier decision of VXDC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1388 ; (2005) 146 FCR 562. In the latter case at [23]-[25], Heerey J examined the history of events leading up to the enactment of s 422B. In Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 , the High Court considered provisions in another part of the Act which were analogous to provisions concerning the procedure to be followed by the Tribunal. The majority held that such provisions did not exclude the common law rules of natural justice. McHugh J considered that the provisions did not "exhaustively define the content of fair procedure". Kirby J observed that "(i)t would require much clearer words" in order to provide that such provisions "exhaust the applicable rules of natural justice, although not mentioned and however important such requirements might be in the particular case". 29 In Lat the Full Court was concerned with s 51A , a provision similar in effect to s 422B. At [63]-[67] the Court said: 63. We do not propose to repeat or analyse the division of opinion as to the ambit of the provisions which is revealed in those authorities. The differing views are fully set forth in the passages from the judgments to which we have referred. 64. It is true that the words "in relation to the matters it deals with" might be thought to be ambiguous or, perhaps, as Heerey J said in VXDC , obscure. However, reference to the Explanatory Memorandum and the Second Reading Speech makes it plain that s 51A and the related provisions of the Act , were intended to overcome the effect of the High Court's decision in ... Miah ... . 65. Heerey J set out in VXDC at [23]-[25] the relevant passages from the majority judgments in Miah and the salient portions of the Explanatory Memorandum and the Second Reading Speech. The words "exhaustively state" are, as Heerey J pointed out, picked up in the Explanatory Statement from the majority judgments in Miah . We agree with the observation at [30] in VXDC that the drafters of the Explanatory Statement and the Minister could hardly have made the intention of the 2002 amendments any clearer. 66. What was intended was that Subdiv AB provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule. 67. Other aspects of the common law of natural justice, such as the bias rule are not excluded ... . 30 The decision in Lat is consistent with the more recent decision of the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 232 CLR 189 at [48] . It follows that to the extent that WABZ established that a failure to permit cross-examination may constitute a denial of procedural fairness amounting to jurisdictional error, it is no longer good law. However, to the extent that the case establishes that the Tribunal has a discretion to permit cross-examination, I see no reason to doubt its correctness. It also follows that neither a person attending to give evidence, nor an applicant attending to make submissions, has a right to cross-examine witnesses.