Case: Minister for Immigration &amp; Multicultural Affairs v Lay Lat [2006] FCAFC 61
Outcome: discussed
Since writing these reasons for judgment, I have become aware of the judgment of the Full Court in Minister for Immigration &amp; Multicultural Affairs v Lay Lat [2006] FCAFC 61. That judgment deals with an appeal by the Minister from a judgment of the Federal Magistrates Court, which quashed a decision of a delegate of the Minister to refuse a Business Skills Migrant visa to the respondent to the appeal, a person who had applied from outside Australia for that visa. The issue was whether the respondent had been denied what the Full Court called 'common law procedural fairness', because the decision-maker did not draw to the respondent's attention the point on which the decision against him turned. If the respondent were entitled to succeed on that issue, there was then an issue as to whether a right to procedural fairness was excluded by s 51A of the Migration Act , a provision in terms similar to both s 357A and s 422B , but relating to decisions by the Minister or delegates of the Minister. At [46] [59], the Full Court held that there had been no denial of procedural fairness, because the relevant point was obvious to the respondent. The Full Court then proceeded, at [60] [70], to make some observations, which are clearly obiter, on the effect of s 51A. Following VXDC v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2005] FCA 1388 (2005) 146 FCR 562, the Full Court expressed the view that s 51A operates to exclude the 'common law natural justice hearing rule' altogether. 97 To the extent to which Lay Lat might be taken to be authority on the meaning and effect of s 357A of the Migration Act , it does not bind me to hold that Ms Antipova's only entitlement to procedural fairness is to be found in the meagre provisions of Div 5 of Pt 5 of the Migration Act . In my view, to the extent that it suggests that s 422B excludes all principles of procedural fairness, other than those found in Div 4 of Pt 7 of the Migration Act , VXDC is fundamentally wrong. The obiter remarks in Lay Lat are entitled to great respect, appearing as they do in a considered judgment of a Full Court, but I cannot bring myself to accept that they are correct. For the reasons I gave in Moradian v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 1590 (2004) 142 FCR 170 at [28] , I remain of the view that the words 'in relation to the matters it deals with', appearing in each of ss 51A , 357A and 422B of the Migration Act are intended to qualify the words preceding them, and to reduce what would otherwise be the absolute effect of those exclusionary words. If this were not the case, the words 'in relation to the matters it deals with' would be otiose, and it is not to be supposed that Parliament intended to enact meaningless, surplus words in a crucial amendment. The words are not the 'plain words of necessary intendment' required to exclude the requirements of procedural fairness. See Annetts v McCann [1990] HCA 57 ; (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ, and the authorities there cited. It is highly unlikely that Parliament had in mind all of the myriad ways in which procedural fairness, a concept the content of which is dependent on the circumstances of each case, could arise. The present case forms a good example of what would result if the view expressed in Lay Lat were to be followed. Assuming that s 360(1) of the Migration Act does not have the meaning that it has in my view, the Tribunal could reduce the time of a hearing arbitrarily as much as it chose, interrupt and curtail the evidence of the applicant constantly, and deprive the applicant of any opportunity to put his or her case, and the applicant would have no redress. It is impossible to imagine that Parliament intended such a drastic result. 98 To the extent to which the views expressed in VXDC and Lay Lat are said to be based on a reading of the explanatory memorandum and the second reading speech relating to the bill by which ss 51A , 357A and 422B were introduced into the Migration Act , I repeat the view I expressed in Moradian at [35]. Those documents do not contain statements specific enough to resolve any ambiguity in those provisions, or to disclose a purpose specific enough to warrant a construction of the provisions that would regard them as excluding the entirety of the principle of procedural fairness described as the 'natural justice hearing rule'. 99 For these reasons, if it is necessary to ask the question whether Ms Antipova is entitled to succeed on the basis that the Tribunal denied her procedural fairness, by the manner in which it conducted her hearing, I do not regard VXDC and Lay Lat as requiring me to take a view different from that I have expressed above.