Case: WAJR v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 106 (2004) 204 ALR 624
Outcome: considered
Counsel for the Minister submitted that SCAR has been the subject of judicial criticism, and even that it has been not followed. Reference was made to WAJR v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 106 (2004) 204 ALR 624, in which French J distinguished SCAR on the facts at [46]. At [57] [59], his Honour discussed the question whether s 422B of the Migration Act operated to preclude the application of the principles of procedural fairness in the context of the failure of the Refugee Review Tribunal to ask any questions at the hearing as to a particular issue on which it later found adversely to the person seeking a protection visa. In the course of that discussion, his Honour examined whether there had been a failure to comply with s 425 of the Migration Act . In the alternative, his Honour examined the issue on the assumption that s 425 had no application, holding that the denial of procedural fairness in that case amounted to jurisdictional error, notwithstanding s 422B. Nothing that his Honour said in that passage amounted to a criticism of SCAR , or a refusal to follow it. Indeed, at [58], his Honour affirmed the central propositions for which SCAR stands, saying: 'A failure to conduct a hearing of the kind contemplated by s 425 in my opinion would amount to a failure to comply with the obligation imposed by that section upon the tribunal to invite an applicant to participate in such a hearing. That obligation is so central to the conduct of the tribunal process that it necessarily conditions the power to make an adverse decision on review.' 93 If SCAR is wrongly decided, and s 360(1) of the Migration Act is not to be given the meaning it bears in my opinion, it is necessary to consider the second answer to the question whether s 357A of the Migration Act ousts the right, which Ms Antipova would have otherwise, to establish that the Tribunal's unfairness to her constitutes jurisdictional error, entitling her to have the Tribunal's decision set aside. Section 357A is a difficult provision to construe. It does not exclude altogether the principles of procedural fairness. There must be some doubt as to whether Parliament could exclude procedural fairness altogether, given that a denial of procedural fairness is a ground for the remedies referred to in s 75(v) of the Constitution . At best, the legislative power extends to regulating procedures, and this is what s 357A attempts to do. It provides that Div 5 of Pt 5 of the Migration Act 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 provision assumes that there will be aspects of the 'natural justice hearing rule' that are not matters dealt with by any provision of Div 5. As the cases so far have shown, identifying a provision dealing with a particular 'matter', relating to procedural fairness is not always easy. See, for example, the passages in WAJR , to which I have referred in [86]. The present case is relatively easy. No provision of Div 5 deals with the imposition of time limits on the hearings of the Tribunal. Unless it be s 360(1) , no provision deals with the process by which evidence is adduced at a Tribunal hearing. There is certainly no provision dealing with the 'matter' of a Tribunal member interrupting answers to questions. No provision gives the Tribunal member a right to control and censor the evidence given, by refusing to hear what the applicant for review wishes to say.