Saeed v Minister for Immigration & Citizenship

[2010] HCA 23

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(Judgment by: French CJ, Gummow J, Hayne J, Crennan J, Kiefel J)

Saeed
vMinister for Immigration & Citizenship

Court:

Judges:
French CJ
Gummow J
Hayne JHeydon J

Crennan J
Kiefel J

Legislative References:
Migration Act 1958 - Division 3 of Pt 2
Judiciary Act 1903 - s 39B
Migration Legislation Amendment (Procedural Fairness) Act 2002 - Section 51A

Hearing date:
Judgment date: 23 June 2010

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Judgment by:
French CJ
Gummow J
Hayne J
Crennan J
Kiefel J

[1] 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 Lat ^[8] ( 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 McCann ^[11] 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 justice regulate the exercise of that power. ^[12] Brennan J in Kioa v West ^[13] explained that all statutes are construed against a background of common law notions of justice and fairness. His Honour said:

[W]hen the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that "the justice of the common law will supply the omission of the legislature". The true intention of the legislation is thus ascertained.

[12] The implication of the principles of natural justice in a statute is therefore arrived at by a process of construction. It proceeds upon the assumption that the legislature, being aware of the common law principles, would have intended that they apply to the exercise of a power of the kind referred to in Annetts v McCann . ^[14]

[13] Observance of the principles of natural justice is a condition attached to such a statutory power and governs its exercise, as Brennan J further explained in Kioa v West . ^[15] A failure to fulfil that condition means that the exercise of the power is inefficacious. ^[16] A decision arrived at without fulfilling the condition cannot be said to be authorised by the statute and for that reason is invalid. ^[17]

[14] In Annetts v McCann Mason CJ, Deane and McHugh JJ said that the principles of natural justice could be excluded only by "plain words of necessary intendment". ^[18] And in Commissioner of Police v Tanos ^[19] Dixon CJ and Webb J said that an intention to exclude was not to be assumed or spelled out from "indirect references, uncertain inferences or equivocal considerations." Their Honours in Annetts v McCann added that such an intention was not to be inferred from the mere presence in the statute of rights consistent with some natural justice principles.

[15] The presumption that it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness, ^[20] derives from the principle of legality which, as Gleeson CJ observed in Electrolux Home Products Pty Ltd v Australian Workers' Union , ^[21] "governs the relations between Parliament, the executive and the courts." ^[22] His Honour said: ^[23]

The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.

Sections 56 and 57

[16] Sections 56 and 57 are the only provisions in Subdiv AB containing powers by which a visa applicant may be given an opportunity, after lodging their application, to provide further information (s 56) or comment on information provided to the Minister (s 57). Section 57 requires certain procedures to be followed to that end. Those sections provide:

56 Further information may be sought

(1)

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.

(2)

Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.

57 Certain information must be given to applicant

(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.

[17] Some observations are necessary at this point with respect to these provisions.

[18] Section 57(1) and (2) invite comparison with what might ordinarily be required by the hearing rule. It is necessary to bear in mind, in that regard, that what is required to provide procedural fairness according to the rule will vary. Natural justice is flexible and adaptable to the circumstances of the particular case. ^[24]

[19] Brennan J in Kioa v West ^[25] said that, in the ordinary case, an opportunity should be given to a person affected by a decision to deal with any adverse information that is "credible, relevant and significant". That approach has more recently been confirmed in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs . ^[26] Mason J in Kioa v West ^[27] went further. In his Honour's view the common law would require the decision-maker to bring the critical issue or factor on which the decision was likely to turn to the attention of the person. Brennan J's approach would not deny that this may be necessary in a particular case.

[20] The requirements of s 57(1)(a) and (2)(b) are similar to those referred to by Mason J. When the Minister considers that certain information would be the reason, or part of the reason, for refusing to grant a visa, the Minister is to provide particulars of it in order that the visa applicant understands its relevance. The requirement in s 57(2)(b), that the Minister ensure, as far as reasonably practicable, that the visa applicant understands why certain information is relevant, may go further. It would require that the importance of the information and its potential impact upon the applicant's case for a visa be identified and the information be communicated in a way which promotes that understanding as far as is possible. It would also require that consideration be given to the means by which particulars of the information should be provided, as most suitable to that purpose. Section 58 lists the alternatives of writing, telephone or an interview. It is not difficult to envisage that in some cases an interview may be necessary.

[21] Not all information adverse to a visa applicant, and which may be influential to a decision to refuse to grant a visa, qualifies as "relevant information", particulars of which must be provided by the Minister. Section 57(1)(b) limits the information to that which is specific to the visa applicant or another person, rather than a class of persons. More general information, such as country information, is unlikely to fall within this description.

[22] It is a matter of some significance to the application of ss 51A(1)-57, that s 57 does not apply to all visa applicants. It requires only that "relevant information" be given to visa applicants who are in the migration zone. ^[28] This follows from subs (3)(a). Subsection (3)(b) further provides that the requirements of subs (2) do not apply to a visa which does not carry with it a right of review. Neither condition for the application of s 57 was present with respect to the visa for which the appellant applied.

[23] It remains to mention the procedures provided by s 56. It may be observed that an invitation under s 56(2) might allow for a response to adverse information by the exercise of the power to obtain additional information. The power given by s 56 is not expressed in terms which would oblige its exercise by the Minister in order that an opportunity for comment could be provided to a visa applicant. Nevertheless, as Gaudron J observed in Re Minister for Immigration and Multicultural Affairs ; Ex parte Miah , ^[29] where the Minister has regard to information other than that provided by an applicant, a question may arise whether procedural fairness requires that the powers in s 56(2) must be exercised to permit an applicant to put submissions or provide further information.

The decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah

[24] The provisions of Subdiv AB, prior to the insertion of s 51A, were considered in Ex parte Miah . The application for a protection visa was made by the applicant after he had entered Australia. ^[30] The fact the application was made onshore rather than, as in the present case, offshore, is a distinction to which further reference will be made in these reasons.

[25] Section 57(2) did not apply in Ex parte Miah as the information in question was not "relevant information" within the meaning of subs (1). The issue was whether natural justice nonetheless operated to require the provision of the information. It was argued for the Minister that Subdiv AB was a code, as its heading ("Code of procedure for dealing fairly, efficiently and quickly with visa applications") suggested. It therefore excluded natural justice principles. The argument was not accepted by a majority of the court. ^[31] McHugh J observed that the use of the word "fairly" in the heading made it difficult to extrapolate a manifestly clear intention to exclude natural justice principles. ^[32] Gaudron J considered that the heading imparted notions of procedural fairness. ^[33] Moreover, as her Honour pointed out, the correct question is not whether Subdiv AB constitutes a code; it is whether, on its proper construction, it relevantly (and validly) limits or extinguishes the obligation to accord procedural fairness. ^[34] For it to do so requires a clear expression of intention. No member of the majority ^[35] found such an expression present in the subdivision.

Section 51A and its operation

[26] Section 51A appeared as item 1 to the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth). That Act also introduced virtually identical sections to s 51A in other parts of the Act, including s 357A in Pt 5 and s 422B in Pt 7, which concern the conduct of reviews by the Migration Review Tribunal and the Refugee Review Tribunal respectively. The insertion of s 51A was plainly a response to the decision in Ex parte Miah .

[27] The language of the section and its analogues, and in particular the phrase "in relation to the matters it deals with" in subs (1), has been considered in judgments of single judges and Full Courts of the Federal Court. The phrase has been described as difficult to construe ^[36] and apply. ^[37] In VXDC v Minister for Immigration and Multicultural and Indigenous Affairs ^[38] and in Lay Lat ^[39] it was described as ambiguous or obscure.

[28] The difficulty in the meaning of the phrase "in relation to the matters it deals with" was resolved in VXDC and then subsequently in Lay Lat , by resort to extrinsic materials. In Lay Lat the Full Court considered that the Explanatory Memorandum to the 2002 amending legislation and the second reading speech of the Minister made it plain that the terms of sections such as s 51A(1) were intended to overcome the effect of the decision in Ex parte Miah . ^[40] The Full Court said: ^[41]

We agree with the observation ... in VXDC that the drafters of the Explanatory Statement and the Minister could hardly have made the intention of the 2002 amendments any clearer.

[29] The Full Court in this case held Lay Lat to be correct in its approach. ^[42] Neither Full Court considered competing views about the operation of s 51A(1) or its analogues. They did not determine what were "the matters" to which it was intended to refer. In Moradian v Minister for Immigration and Multicultural and Indigenous Affairs Gray J observed that, even if regard were to be had to extrinsic materials, they did not resolve the questions to which the section gave rise. ^[43]

[30] In the Explanatory Memorandum it was said that it had been the original intention of Subdiv AB to provide a "code of procedure" and to exhaustively replace common law natural justice requirements, other than the rule against bias. ^[44] It was observed that the majority in Ex parte Miah considered that the exclusion of common law natural justice requirements required a clear legislative intention and that no such clear intention was present in the Act. ^[45] The following statement was then made: ^[46]

The purpose of this amendment, and the amendments in items 2 to 6, is to provide a clear legislative statement that certain "codes of procedure" in the Act are an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

In his second reading speech the Minister, after discussing the same background, said: ^[47]

Therefore, the purpose of this [B]ill is to make it expressly clear that particular codes in the Migration Act do exhaustively state the requirements of the natural justice or procedural fairness hearing rule.

This will have the effect that common law requirements relating to the natural justice or procedural fairness hearing rule are effectively excluded, as was originally intended.

And: ^[48]

In conclusion, these amendments are necessary to restore the [P]arliament's original intention that the Migration Act should contain codes of procedure that allow fair, efficient and legally certain decision making processes that do replace the common law requirement of the natural justice hearing rule.

[31] As Gummow J observed in Wik Peoples v Queensland , it is necessary to keep in mind that when it is said the legislative "intention" is to be ascertained, "what is involved is the 'intention manifested' by the legislation." ^[49] Statements as to legislative intention made in explanatory memoranda or by Ministers, however clear or emphatic, cannot overcome the need to carefully consider the words of the statute to ascertain its meaning.

[32] In Re Bolton ; Ex Parte Beane ^[50] the question was whether a statutory provision concerned with "visiting forces" applied to deserters from the armed forces of the United States. Mason CJ, Wilson and Dawson JJ said: ^[51]

[T]he second reading speech of the Minister ... quite unambiguously asserts that Pt III relates to deserters and absentees whether or not they are from a visiting force. But this of itself, while deserving serious consideration, cannot be determinative; it is available as an aid to interpretation. The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law. ^[52]

[33] Regard was had by the Full Court in this case to what was said in Re Bolton ; Ex Parte Beane . Nevertheless, it is apparent that the court did not consider the actual terms of s 51A and its application to the provisions of the subdivision. As was pointed out in Catlow v Accident Compensation Commission ^[53] it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction.

[34] It may be accepted that the context for the enactment of s 51A was provided by the decision in Ex parte Miah and that s 51A was an attempt to address the shortcomings identified in that decision. Resort to the extrinsic materials may be warranted to ascertain that context and that objective, although it is hardly necessary to do so. But that objective cannot be equated with the statutory intention as revealed by the terms of the subdivision. The question whether s 51A in its operation has the effect contended for, of excluding the natural justice hearing rule, is to be answered by having regard, in the first place, to the text of s 51A and the provisions with which it interacts. The questions which, in turn, are raised about the operation of s 51A, it will be seen, are not answered by anything said in the extrinsic materials. This is explicable. The decision in Ex parte Miah , which s 51A addressed, was not concerned with the application of s 57 of the subdivision to offshore visa applicants.

[35] The declaration in s 51A(1), that the subdivision is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule, is qualified by the words "in relation to the matters it deals with".

[36] The importance of the question about what "matters" are to be seen as dealt with in the subdivision was identified by French J in WAID v Minister for Immigration and Multicultural and Indigenous Affairs , ^[54] with respect to s 422B of the Act. In NAQF v Minister for Immigration and Multicultural and Indigenous Affairs ^[55] Lindgren J considered that two approaches to the question were open with respect to s 357A(1). If the general question was posed, "What is the subject matter of Div 5 of Pt 5?", the answer would likely be, "The conduct of reviews by the MRT". Translated to Subdiv AB of Div 3 of Pt 2, the answer to the question would be, "The procedure for dealing with visa applications". This approach, which looks to the totality of the matters dealt with by the subdivision, was submitted by the Minister to be correct.

[37] The Minister's argument laid stress on the word "it" in s 51A(1) as referable to the subdivision. Consistently, where s 51A(2) refers to the matters "they" deal with, it refers to the group of ss 494A-494D, which deal with the giving of notice. So much may be accepted. However, a consideration of all the words "the matters it deals with" directs attention to provisions within the subdivision or the group of sections which are operative.

[38] The alternative inquiry considered by Lindgren J in NAQF v Minister for Immigration and Multicultural and Indigenous Affairs was, "What are the matters Div 5 of Pt 5 deals with?" The answer to that question would require a search of the sections within the Division for a provision "dealing with" a relevant "matter". ^[56] And, as his Honour observed, the plural form of "matters" suggests that the inquiry might be directed to a number of such provisions.

[39] It was not necessary for Lindgren J to reach a conclusion as to which was the correct approach, but his Honour said that he favoured the latter, ^[57] as did French J, implicitly, in WAID v Minister for Immigration and Multicultural and Indigenous Affairs . ^[58] Such an approach is plainly correct. The presumption is that words are used in a statute for a reason; they should be given their meaning and effect. ^[59]

[40] Necessarily, provisions which "deal with" "matters", for the purposes of s 51A, will contain some procedural requirements which go some way towards satisfying the fundamental requirements of the natural justice hearing rule. Some such procedural requirements are necessary if s 51A is to operate and the procedures provided for are to be taken as exhaustive of the rule. Section 57 contains such procedures. The power given in s 56, to invite an applicant to give further information, may be used to further procedural fairness but it does not mandate procedures which may be taken as a substitute for the requirements of the rule. Section 51A is not addressed to s 56.

[41] A point made by Lindgren J in NAQF v Minister for Immigration and Multicultural and Indigenous Affairs is that the "matters" "dealt with" in the subdivision cannot be simply equated with the procedural requirements of its operative provisions, ^[60] for s 51A(1) would then be largely otiose. Thus, if the matter dealt with by s 57 was the giving of information fulfilling the description of "relevant information" to a visa applicant for comment, s 51A would operate so that it was exhaustive of the requirements of the natural justice hearing rule so far as concerned the giving of information only of that kind. A limited purpose would then be achieved by s 51A(1). The rule would continue to apply to the provision of other information. The search, as his Honour said, is for a larger subject matter or matters. ^[61]

[42] In order to give s 51A operation it is necessary to refer to the subject of the "matter" with which s 57 deals as the provision of information, more generally relevant and adverse, for comment. But there is a qualification to the description of the "matter", which arises from the persons to whom the information is to be provided. The terms of the section limit such persons to onshore visa applicants. The "matter" with which s 57 deals, is the provision of such information to onshore visa applicants. The provision of information to offshore visa applicants, such as the appellant, is not a "matter" dealt with by the sub-section. It follows that the application of the hearing rule in dealings with the appellant's application is not excluded by Subdiv AB.

The Notice of Contention

[43] On the hearing of the appeal the Minister was granted leave to file a Notice of Contention to the effect that s 57(3) dispenses both with the statutory duty to provide information and any common law duty to provide natural justice. It was submitted for the Minister that it could not have been intended to provide that onshore visa applicants have only the procedural rights provided by s 57(1) and (2), whilst offshore visa applicants were to be afforded all that the natural justice hearing rule would require. This was the view expressed in Lay Lat . ^[62]

[44] The question whether the natural justice hearing rule is not to apply to dealings with offshore visa applicants is not answered by pointing to the particular procedures provided by s 57(2) with respect to onshore visa applicants and proceeding from the premise that what was there provided was the most that any visa applicant could expect by way of procedural fairness. All that may fairly be deduced from the terms of s 57 is that it was considered to be appropriate to onshore, but not offshore, visa applicants.

[45] The reason for the differential operation of s 57, to onshore and offshore visa applicants, is not mentioned in the Act. The Minister submitted that that operation must be understood in the wider scheme of the Act which may be taken to reflect policy choices about matters such as administrative convenience. Onshore visa applicants are entitled to reasons for refusal; offshore visa applicants are not. ^[63] There is no strict limitation upon offshore visa applicants reapplying, as there is with respect to onshore visa applicants. ^[64]

[46] The feature of onshore visa applications which explains these provisions is the right of review of the Minister's decision which is extended to them, but not to offshore visa applications. Onshore visa applicants need reasons for refusal for that purpose. The fact that their ability to reapply is limited may be explained because they have been provided with a right of review of the decision on their initial application. Further, it may be observed that the Act does not deny offshore visa applicants reasons; it simply does not oblige the giving of them in every case. In this case reasons were given.

[47] The Minister's submissions acknowledged that the content of natural justice might vary with respect to individual cases of offshore visa applicants. It was submitted that factors such as administrative convenience and difficulties in communication would be weighed and that in some cases nothing, or practically nothing, might be seen as required. But the proposition that natural justice may, in some cases, require less does not lead to the conclusion that none is intended to be provided and that no consideration is to be given to what could and should be provided in an individual case.

[48] The factors pointed to by the Minister may well explain why the procedures in s 57(2) were not considered to be appropriate with respect to offshore visa applicants. The obligation of the Minister, to "ensure" that a visa applicant understands the relevance of the adverse information, highlights the potential for practical difficulties. Section 58 recognises that it may be necessary to conduct an interview to fulfil this obligation. This is unlikely to be practicable with respect to offshore visa applicants. It may therefore have been considered necessary to exclude offshore visa applicants from the operation of s 57, leaving considerations of what natural justice required to be determined by reference to the circumstances of a given case. Nothing is said in Subdiv AB about the exclusion of the hearing rule so far as concerns offshore visa applicants. Section 57(3) excludes only the procedural requirements of s 57(2).

Exercise of the power to refuse

[49] At the outset of the appellant's argument as to the validity of s 51A it was submitted that there may be limits to the extent to which procedural fairness might be excluded by a law of the Commonwealth. The focus of the submission was constitutional powers or protections. It may more directly raise questions as to the conditions necessary to the exercise of the relevant powers under the Act and the limits which those conditions may effect.

[50] The powers given by s 56(2) put the issue in context. As was observed earlier in these reasons, ^[65] questions about the exercise of that power in accordance with natural justice principles may well arise where relevant, adverse, information is received by the Minister. Although s 56(2) is cast in terms that the Minister "may" invite the giving of additional information, where information is received which is adverse to an applicant, perhaps critically so, the circumstances may be such as to call for the exercise of the power. ^[66] But if s 57 applies to offshore visa applicants, a question arises as to whether the power to request additional information is to be exercised by the Minister. The answer to this question may be provided by a consideration of the ultimate power to be exercised, to grant or refuse a visa, and of the conditions attaching to the exercise of that power.

[51] Section 65(1), excluding requirements not here relevant, provides that:

After considering a valid application for a visa, the Minister:

(a)

if satisfied that:

...

(ii)

the other criteria for it prescribed by this Act or the regulations have been satisfied;

...

is to grant the visa; or

(b)

if not so satisfied, is to refuse to grant the visa.

[52] The Act thereby imposes a duty upon the Minister to have regard to the criteria necessary to the grant of a visa and an obligation to consider prior to coming to a decision. ^[67] Here the Minister was obliged to consider the appellant's employment history. The facts about which the Minister had to be satisfied, or not satisfied, was whether she had been employed in a skilled occupation for the requisite period prior to her application being made.

[53] It was said in Re Minister for Immigration and Multicultural and Indigenous Affairs ; Ex parte Applicants S134 /2002 ^[68] that the Act requires more than a bona fide attempt to be satisfied; it requires actual satisfaction. And in R v Connell ; Ex parte Hetton Bellbird Collieries Ltd ^[69] Latham CJ said that where the exercise of statutory power is conditional upon the existence of a particular opinion, an inquiry for the court may be whether the opinion has really been formed.

[54] The question which arises, by reference to s 65(1), is whether the Minister can reach a state of non-satisfaction about the criteria if the Minister puts out of consideration whether there was an answer to the information contradicting the employment history put forward by the appellant. An analogy may be drawn with material, or relevant, considerations. In Avon Downs Pty Ltd v FCT ^[70] the Commissioner was required to be satisfied as to the state of voting power at the end of the year of income in question. Dixon J said that the Commissioner's decision was subject to review, inter alia, if he "excludes from consideration some factor which should affect his determination". ^[71] Where a decision-maker is bound to take a factor into account but does not, the requisite state of satisfaction is not reached. ^[72]

[55] If such consideration is necessary before the Minister can be satisfied, or not, there may be limits to the extent to which restrictions placed upon the exercise of the power to refuse a visa can operate consistent with it. The question therefore is whether the Act requires that consideration. It is not necessary to conclude that question, given the conclusion available as to the construction and operation of s 51A, nor is it desirable since the argument on the appeal did not proceed to that point.

Conclusion on construction

[56] Assuming, for present purposes, that s 51A as it applies to s 57, is valid and effective to exclude the natural justice hearing rule, it is excluded only so far as concerns onshore visa applicants. This follows from the terms of s 57(3), which plainly exclude offshore visas from the operation of s 57. The position of offshore visas is not addressed in Subdiv AB. The provision of particulars of information to them for comment is not a "matter" "dealt with" by s 57 or the subdivision.

[57] Section 51A(1) was addressed to provisions such as s 57(2). So much may be inferred from it being a response to the decision in Ex parte Miah and from the extrinsic materials. Nothing in those materials is addressed to the question of construction which arises and which concerns the identification of the matter dealt with. The statement in the Explanatory Memorandum did little more than repeat the words of s 51A(1), which themselves were expressed in general terms.

[58] In Coco v R ^[73] it was said, with respect to fundamental rights, that "[t]he courts should not impute to the legislature an intention to interfere with fundamental rights." ^[74] The same may be said as to the displacement of fundamental principles of the common law. In Coco v R Mason CJ, Brennan, Gaudron and McHugh JJ said: ^[75]

Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.

[59] It follows that the implication of the natural justice hearing rule with respect to offshore visa applicants was maintained. The Minister was obliged to provide the appellant with an opportunity to answer the adverse material.

Orders

[60] The appeal should be allowed with costs. The orders of the Full Court of the Federal Court and of the Federal Magistrates Court should be set aside and the respondent should pay the appellant's costs of these proceedings. The decision of the delegate of the Minister dated 16 July 2008 should be quashed and a writ of mandamus issue requiring the Minister to consider and determine the appellant's application for a Skilled -- Independent Visa (Subclass 175) according to law.