Saeed v Minister for Immigration & Citizenship

[2010] HCA 23

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(Decision by: Heydon J)

Saeed
vMinister for Immigration & Citizenship

Court:

Judges: French CJ
Gummow J
Hayne J

Heydon JCrennan 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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Decision by:
Heydon J

[61] I agree with the orders proposed in the joint judgment, and adopt the account of the background, the description of the legislation and the abbreviations employed in it.

[62] On no few occasions when an injustice may result if an appellant's appeal fails, the present respondent chooses to consent to the appeal being allowed. This appeal concerns a scheme created by the Parliament under which non-citizens may make applications for visas while offshore. The Parliament did not have to create this scheme. The parties did not point to any treaty entered into by the Executive which compelled the Parliament to do so if Australia were not to be in breach of international law. But once the scheme was created, and once the appellant applied for a visa, she had a right to due process according to law. She had an interest in that process being pursued, and a legitimate expectation that it would be pursued. If the appellant is in due course able to explain satisfactorily the adverse material on which the respondent's delegate relied, the failure of the delegate to inform the appellant of the adverse material before deciding against her could then be said to have harmed her interests in a way amounting to a great injustice. Whether it would in fact have generated that harm is something that only the future will tell. But in those circumstances it may be thought to be surprising that the respondent chose to resist the present appeal. Whether or not the respondent's resistance to the appeal is surprising, the weapons to hand are too feeble and the resistance fails. The appeal must be allowed for the following reasons.

A simple form of reasoning

[63] The appellant's case can be stated in the following way.

(a)

Section 51A(1) renders Pt 2 Div 3 Subdiv AB "an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with."

(b)

The expression "the requirements of the natural justice hearing rule" means the general law requirements of the natural justice hearing rule.

(c)

Therefore s 51A(1) does not render Pt 2 Div 3 Subdiv AB an exhaustive statement of the general law requirements of the natural justice hearing rule in relation to the matters it does not deal with.

(d)

One matter which Pt 2 Div 3 Subdiv AB deals with is the matter dealt with in s 57 -- the possibilities for the respondent's obligations concerning the treatment of "relevant information", or information of a more general kind, in relation to onshore visa applicants.

(e)

Section 57 does not deal with the possibilities for the respondent's obligations concerning the treatment of "relevant information", or information of a more general kind, in relation to offshore visa applicants: s 57(3).

(f)

It is impossible to read ss 51A and 57 together as taking away the application of the general law requirements of the natural justice hearing rule to the subject of "relevant information" in relation to offshore visa applicants. Section 57(3) expressly provides that s 57 does not apply to a class to which the appellant belongs.

(g)

Without the aid to be found in the sharp stimulus of a particular controversy, it may be difficult to state fully the general law requirements of the natural justice hearing rule. But those requirements in their application to the present circumstances did create a duty on the respondent's delegate to give the appellant "a fair opportunity to correct or contradict any relevant material prejudicial to [her]". ^[76] Hence the delegate had a duty to bring to the appellant's attention the information which the Australian immigration officers had discovered in Pakistan before reaching an adverse decision, so that the appellant might comment on it with a view to qualifying it, explaining it or refuting it.

(h)

The delegate advised the appellant of that information in the decision record, but did not do so before the decision was reached.

(i)

Therefore the delegate failed to afford the appellant natural justice and the respondent's decision was void.

The respondent's preliminary point

[64] Unless that reasoning is open to valid criticism, it must be accepted. The respondent launched several attacks on steps (d) and (f). Before going to them, it is desirable to note a preliminary point which the respondent made. Section 51A was introduced in 2002, but it was not introduced alone. ^[77] At the same time equivalent provisions were introduced into other parts of the Act -- s 97A into Pt 2 Div 3 Subdiv C, s 118A into Pt 2 Div 3 Subdiv E, s 127A into Pt 2 Div 3 Subdiv F, s 357A into Pt 5 Div 5 and s 422B into Pt 7 Div 4. Counsel for the respondent submitted that these amendments to the Act were to be seen as part of a unified attempt to ensure that the particular "codes", as he called them, in each of those divisions or subdivisions exhaustively stated the requirements of the "procedural fairness hearing rule". Consistently with that submission, in putting arguments about the construction of s 51A the respondent relied on authorities on equivalent provisions, for example ss 357A ^[78] and 422B(1). ^[79]

The "single subject matter construction"

[65] The first of the respondent's attacks on steps (d) and (f) of the above reasoning was a submission that the expression in s 51A(1) "the matters it [ie Pt 2 Div 3 Subdiv AB] deals with" was a reference to a single subject matter to be found in the subdivision as a whole. It was not a reference to the separate subject matters which each section of the subdivision, one by one, dealt with. The single subject matter was that described in the heading to the subdivision as the "procedure for dealing ... with visa applications". If the submission were sound, Pt 2 Div 3 Subdiv AB would completely exclude the general law requirements of the natural justice hearing rule. The respondent submitted that this "single subject matter construction" was supportable for five reasons.

[66] The respondent's first reason : singular number . The first reason was said to be that "textually it best fits the use of the singular in subsection (1)" ("[t]his Subdivision" and "it deals"). A similar idea was referred to by Lindgren J in relation to s 357A in NAQF v Minister for Immigration and Multicultural and Indigenous Affairs . ^[80] He said that there were two textual considerations "which may be thought to support" ^[81] the "single subject matter construction". One was "the contrast between the singular form of s 357A(1) ('This Division is taken to be ... it deals with') and the plural form of s 357A(2) ('Sections 375, 375A and 376 and Div 8A ... are taken to be ... they deal with')." ^[82] Transferred to s 51A, the argument contrasts the words in s 51A(1) "is taken" and "it deals with" with the words in s 51A(2) "are taken" and "they deal with". The argument would only work if in s 51A(1) "matters" read "matter" and if s 51A(2) concluded "matters each of them dealt with". ^[83] But the legislation does not take this form. As Lindgren J suggested in relation to another section, the use of the word "matters" in s 51A(1) directs the inquiry to more than one matter, and includes the possibility that the matters may be diverse. ^[84] The central difficulty with the respondent's argument is that the word "matters" is in the plural. The fact that the subject of the word "deals" is in the singular is of no significance in working out what is dealt with; the fact that the object of the word "deals" is in the plural, not the singular, is annihilating. And while the question in this court is one of principle, not judicial reputation or curial authority, it cannot be said that any part of Lindgren J's judgment lends any strength to the respondent's argument. In particular, although Lindgren J recorded the point, he also found it uncompelling and unpersuasive. ^[85]

[67] The respondent's second reason : related provisions . The second reason advanced by the respondent for the "single subject matter construction" was the identical use of language in ss 97A, 118A, 127A, 357A and 422B. It was submitted that each section introduces a division or subdivision dealing with a different procedural code. It was submitted that the words "in relation to the matters it deals with" was a repeated formula -- "a not inappropriate generic formula for distinguishing between the subject matters of those six different sets of provisions, not for singling out matters within each of those six sets." The respondent said that the point had been "very well made" by Lindgren J in NAQF v Minister for Immigration and Multicultural and Indigenous Affairs . ^[86]

[68] The answer is that, while the formula performs the function ascribed to it by the respondent, it does not perform only that function. If it performed only that function, the word "matter" would have been used, not "matters". The respondent's citation of NAQF v Minister for Immigration and Multicultural and Indigenous Affairs has a Pyrrhic character. Lindgren J did make the point, but only very tentatively. The tentativeness is seen in the words to which emphasis has been added in the following passages. Lindgren J said: "The drafter may have invoked the expression 'in relation to the matters they deal with' as a universally applicable general formula for distinguishing between the six contexts." ^[87] By the "six contexts" he meant ss 51A, 97A, 118A, 127A, 357A and 422B. Lindgren J also said that, taking s 357A: ^[88]

as an illustration, the drafter may well have been attempting to say that [Pt 5] Div 5 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the subject matter of [Pt 5] Div 5 as distinct from the subject matter of the respective Divisions and Subdivisions in which the other five sections were to be inserted.

Lindgren J did make the point very well. But, as those tentative words foreshadow, he also rejected it very firmly. He reached the conclusion that the second argument, like the first, was uncompelling and unpersuasive. ^[89]

[69] The respondent's third reason : context . The third reason advanced by the respondent was that s 51A had to be read in context. One aspect of the context was said to be set by the heading of the subdivision: "Code of procedure for dealing fairly, efficiently and quickly with visa applications". Another aspect of the context was said to lie in the location of s 51A at the start of a series of provisions setting out detailed steps in a procedure for dealing with visa applications. This, the respondent argued, suggested that the words "in relation to the matters [the subdivision] deals with" referred to the totality of what the respondent called a "code for integrated procedure".

[70] Again the submission founders on the legislative use of the word "matters", not "matter". And so far as the submission relies on the heading, it faces the following difficulty. Part 2 Div 3 Subdiv C, Pt 2 Div 3 Subdiv E, Pt 2 Div 3 Subdiv F, Pt 5 Div 5 and Pt 7 Div 4 contain equivalents to s 51 A. But the headings to those divisions and subdivisions do not contain language equivalent to that used in the heading to Pt 2 Div 3 Subdiv AB. They are not directed expressly to any "code of procedure".

[71] The respondent's fourth reason : responding to Miah's case . The respondent also submitted that s 51A was a direct response to Re Minister for Immigration and Multicultural Affairs ; Ex parte Miah . ^[90] In that case Gaudron J said, and McHugh and Kirby JJ held, that the Act, particularly Pt 2 Div 3 Subdiv AB as it then was, did not exclude the application of the general law rules of procedural fairness. The respondent pointed to McHugh J's statement that Subdiv AB did not declare that the formal procedures set out in the subdivision "exhaustively" defined the content of fair procedure. ^[91] The respondent also pointed to Kirby J's use of the words "exhaust" and "exhaustive" to make the same point. ^[92] And the respondent submitted that it was no coincidence that the Parliament had used the words "exhaustive statement" in s 51A(1) and (2). There are similar statements in the Explanatory Memorandum and the Second Reading Speech. The Explanatory Memorandum stated that it was proposed to amend the Act "to provide a clear legislative statement that specified 'codes of procedure' in the Act are an exhaustive statement of the requirements of the natural justice hearing rule." ^[93] The Second Reading Speech described Miah's case, attributed certain consequences to it, and said the purpose of s 51A and its counterparts was to make it "expressly clear" that particular codes in the Act do "exhaustively state the requirements of the ... procedural fairness hearing rule". ^[94]

[72] But what did these statements mean? Not surprisingly the Explanatory Memorandum and the Second Reading Speech reveal some discontent with the majority view in Miah's case. They proceed on the view that s 51A was "necessary to restore the [Parliament's] original intention that the ... Act should contain codes ... that do replace the common law requirement of the natural justice hearing rule." ^[95] The preference of the government appears to have been for the minority approach of Gleeson CJ and Hayne J in Miah's case. That approach was summarised by Gleeson CJ and Hayne J, after they had analysed various provisions in Pt 2 Div 3 Subdiv AB, as follows: ^[96]

These provisions, read in the context of legislation which requires the decision-maker to give reasons , and entitles an unsuccessful applicant to a full review of the decision on the merits , evince an intention on the part of the legislature to prescribe comprehensively the extent to which, and the circumstances in which, the Minister or delegate is to give an applicant an opportunity to make comments or submissions, or provide information, in addition to the information in the original application or any supplementary information furnished by the applicant before a decision is made. (emphasis added)

The respondent submitted that the Parliament was clearly seeking to invoke that view. The respondent submitted that the above sentence expresses "in quite precise terms what it is that should be taken to be the legal effect of s 51 A." There are grave difficulties with these submissions.

[73] Mr Miah was an onshore visa applicant, and their Honours were speaking of onshore visa applicants. The present context is different from the context their Honours described. The present context concerns the impact of the Act on offshore visa applicants. Section 66 of the Act does not require "the decision-maker to give reasons" and s 338 does not entitle "an unsuccessful applicant to a full review of the decision on the merits". It is not sufficiently clear that the Parliament was seeking to invoke a view stated in relation to onshore visa applicants with certain significant statutory rights and apply it to offshore visa applicants without those rights. The right of onshore visa applicants to review on the merits may not diminish whatever rights to procedural fairness they otherwise have. But the absence of any right in offshore visa applicants to review on the merits strengthens the unlikelihood that the Act excludes their right to procedural fairness. It also strengthens the need for clear language if a construction to that effect is to be adopted. Further, the extrinsic materials do not direct attention to one question, crucial to the present appeal: is the "single subject matter construction" correct? And they do not discuss the meaning of the vital words "in relation to the matters it deals with".

[74] In short, as is very common, reading the Explanatory Memorandum and the Second Reading Speech is much less helpful than reading the legislation itself. No doubt, as the respondent submitted, those materials establish that the government had the "intention" of overturning the "result" of Miah's case. Perhaps the respondent is right to call the indications of this intention "overwhelming". Perhaps the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Lat was right to say that the intention could not have been made "any clearer". ^[97] But what was the content of that "intention"? What was the "result" of Miah's case which the government intended to overturn? Miah's case established the position for onshore visa applicants to whom s 57 applies. An intention to overturn, or an actual overturning of, that result is one thing. But it does not say anything decisive about any intention to legislate in relation to the position for offshore visa applicants to whom s 57 does not apply. In any event, the ultimate question is not what the Parliament intended to do, but what it actually did.

[75] What the Parliament actually did turns on the meaning of the controversial expression "in relation to the matters it deals with". That expression has no parallel in Miah's case. On the occasions when the respondent's submissions gave that phrase attention, they read "matters" as "matter". There is no warrant for this. However, commonly the respondent's submissions did not attach significance to the phrase at all. Yet it is a vital expression. That is because it has a limiting character. It gives s 51A(1) a narrower effect than it would have if it were not there. And the narrowing effect stems from the word "matters". That word means that the fourth argument of the respondent for the "single subject matter construction", like the first three, must fail.

[76] The respondent's fifth reason : does rejection of the " single subject matter construction " give s 51A work to do ? The respondent's fifth reason for supporting the "single subject matter construction" of s 51A was that to reject it and adopt a multiple subject matter approach would give s 51A no work to do. The respondent submitted that the expression "the matters it deals with" in s 51A(1) must refer to something wider than the exact text of the enacted procedural requirements, otherwise s 51A(1) would be superfluous. The respondent submitted that the legislation cannot be construed so that the displacement of the natural justice hearing rule is co-extensive with, but does not go beyond, the text of the enacted procedural requirements. The respondent submitted that if that were the case, the result would be that the general law requirements of the natural justice hearing rule would continue to exist as potential grounds for relief in areas outside those specifically dealt with. In effect, the respondent's contention was that s 51A(1) would have achieved nothing beyond that which the specific provisions did, and would be wholly otiose -- which points to error in the construction which leads to that result. The respondent's submission adopted certain reasoning stated by Lindgren J in NAQF v Minister for Immigration and Multicultural and Indigenous Affairs . ^[98] Lindgren J gave an illustration in relation to s 357A(1) (which corresponds with s 51A(1)): ^[99]

For example, within [Pt 5] Div 5, s 360(1) provides as follows:

The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

If s 357A(1) signified that the natural justice hearing rule was excluded only to the precise extent that it would have required the Tribunal to "invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review" ... and no further, s 357A(1) would have achieved nothing in the present respect: the rule would survive as a ground for relief outside the parameters of s 360(1).

The corresponding example in relation to s 57 is that the natural justice hearing rule is excluded only to the precise extent that it would have required the respondent to give particulars of the "relevant information" in an appropriate way, to ensure that the applicant understood why it is relevant, and to invite the applicant to comment on it.

[77] Assuming but not deciding that the respondent's submission is correct in terms, and accepting that it is supported by Lindgren J, it must be noted that Lindgren J nonetheless went on to indicate an inclination against the "single subject matter construction". ^[100] He also said that the expression "the matters it dealt with" referred to "larger subject matters than the exact text of the procedural fairness requirements". ^[101]

[78] The word "matter" when applied to s 57 can have a meaning which does not render s 51A(1) superfluous or otiose. And there is no reason why a given provision cannot be said to deal with more than one matter. The matter of the precise rule enacted by s 57 is one matter, but another matter is the subject or subjects to which the rule applies. The subject (or subjects) to which the rule applies is wider than the content of the rule. In s 57, one subject is the range of possibilities for the respondent's obligations to onshore visa applicants concerning the treatment of "relevant information". That is a matter wider than the precise text of s 57(2) because it extends to other possible steps the respondent might be obliged to take pursuant to the general law requirements of the natural justice hearing rule. A yet wider subject, and hence "matter", is the subject of the possibilities for the respondent's obligations concerning the treatment of information which the respondent considers would be a reason, or part of a reason, for refusing to grant a visa and which was not given by the applicant for the purpose of the application (ie "relevant information" as defined in s 57(1) but without para (b)).

[79] On either of these wider meanings, it cannot be said that s 51A(1) is otiose. It is true that, on either view, s 51A does less work than it would on the respondent's preferred "single subject matter construction", but it does do some work. Although it is not necessary to decide the point, s 51A very probably reverses Miah's case in the sense that, leaving aside the present appellant's constitutional arguments, if the facts of that case now arose, the point on which Mr Miah had majority support would be decided adversely to him.

[80] A further illustration of the work done by s 51A is this. A construction abolishing the general law requirements of the natural justice hearing rule is not to be inferred "from the presence in the statute of rights which are commensurate with some of the rules of natural justice". ^[102] It follows that the enactment of s 57 did not abolish any additional general law requirements of the natural justice hearing rule. Other provisions in the subdivision providing elements corresponding functionally to parts of the general law requirements of the natural justice hearing rule did not by themselves abolish any additional general law requirements. To ensure that, in the area to which it applied, s 57 was exhaustive of the rules of natural justice, it was necessary to enact s 51 A.

[81] Secondly, let it be accepted that that rejection of the respondent's submissions means that the work which s 51A is to do is limited. That does not point against the approach involved in either of the two characterisations of "matter" in relation to s 57 just postulated. That is because the more widely s 51A is construed and the less scope it leaves for the general law requirements of the natural justice hearing rule, the clearer the language needed to achieve this result would have to be. The language is insufficiently clear. The legislative scheme does not give unequivocal emphasis to s 51A as having a wide application. Nor, indeed, do the extrinsic materials on which the respondent placed much stress.

[82] Both the Act and the extrinsic materials are compatible with s 51A having a narrow application. Section 51A was introduced in 2002, the year after s 474 in a new form had been inserted into the Act, and the year before this court decided the construction of s 474. ^[103] Section 474 was an "ouster clause" or "privative clause" which on one view prevented any court granting relief with respect to most decisions under the Act. It was a view underpinning the Second Reading Speech relating to s 51 A. That Speech treated s 474 not as having a narrow meaning, but as being a section which "greatly expands the legal validity of acts done and decisions made by decision-makers". ^[104] The construction actually arrived at by this court was that s 474 did not protect decisions involving a jurisdictional error from judicial review. In the cases in which this court decided that that was the correct construction, the Commonwealth had submitted that it had a wider meaning. One aspect of the wider meaning it urged was that s 474 should be construed as excluding any implied obligation of procedural fairness. ^[105] If that submission as to the correct construction of s 474 had been correct, it would have left no work for s 51A to do when it was enacted in the following year. And if the broad construction of s 474 underlying what was said in the Second Reading Speech when s 51A was introduced were correct, very little work would have been left for s 51A to do. Here, as elsewhere, the extrinsic materials do not go far enough to achieve the respondent's goals.

The subject matter of s 57

[83] For those reasons the respondent's five arguments in favour of the "single subject matter construction" must be rejected. On that basis, the respondent submitted in the alternative that the subject matter of s 57 was "the provision of information known to the Minister which would be adverse to an applicant's application". It is inherent in that submission that the following words should be added at the end: "whether the applicant is an onshore visa applicant or an offshore visa applicant". That is, the submission rejected the limitation of "matter" to onshore visa applicants which was found in the two versions of "matter" discussed under the previous heading. But the respondent did not explain why that limitation should be abandoned and why so wide a subject matter should be found to exist in view of the limits set by s 57(3) to the scope of s 57. Because s 57(3) expressly provides that s 57(2) "does not apply" in relation to relevant information received by the respondent in respect of certain applications involving offshore visa applicants, that matter is not a matter dealt with by the subdivision. Hence s 51A(1) has no application to it.

The appeal to anomaly

[84] Another obstacle which the respondent raised to the appellant's case was an appeal to anomaly. The supposed anomaly was put thus in Minister for Immigration and Multicultural and Indigenous Affairs v Lat : ^[106]

The Legislature could hardly have intended to provide the full panoply of common law natural justice to visa applicants who are required to be outside Australia when the visa is granted, while conferring a more limited form of statutory protection upon onshore applicants.

If the language of "intention" is abandoned and replaced by the language of construction, the argument is that a construction which leads to offshore visa applicants having better rights than onshore visa applicants is so absurd or unreasonable that it cannot be preferred. However it is put, this appeal to anomaly is unconvincing. The construction advanced by the appellant is not absurd or unreasonable. Even if it were unreasonable, it is far more reasonable than the respondent's construction. The respondent's construction would give substantial natural justice to onshore visa applicants in relation to "relevant information", but none at all to offshore visa applicants. Further, the process of judging whether it is anomalous or unreasonable that the general law requirements of the natural justice hearing rule may offer better protection to offshore visa applicants than s 57 offers to onshore visa applicants has to be carried out bearing in mind a key contrast. Applicants in the former class, unlike the latter, have no right to reasons and no right of merits review before the Migration Review Tribunal.

[85] In assessing the argument from anomaly it is also necessary to bear in mind that the authoritative construction of certain parts of the Act has flowed from two principles. One is that legislation is not lightly to be construed as abolishing the natural justice hearing rule. The second is that legislation should be construed so that it operates within constitutional power, not outside it. ^[107] The consequence of these principles is that the judicial construction of some parts of the legislation may diverge from that which its framers may subjectively have intended. A further consequence is that those parts, so construed, may not fit perfectly with other parts, which can be construed in accordance with the framers' intentions. This is simply an illustration of how the search for the intent of legislators rather than the meaning of legislation can be both delusive and lacking in utility. That is not sufficient to characterise the lack of "fit" as an "anomaly" which is so absurd or irrational that it points away from a particular construction.

Notice of contention

[86] The respondent's argument . The respondent's argument in relation to the notice of contention rested on the terms of s 57 by itself, read quite independently of s 51 A. The argument was that, if it is correct that the natural justice hearing rule applies by virtue of an implication into the relevant statute, one should not make an implication that would render an express provision of the statute redundant. Section 57, it was submitted, ought not to be read by implication as requiring relevant information to be given to applicants of the class described in s 57(3) where s 57 expressly provides that they are not to be given that information.

[87] The impact of s 51 A . That submission must be rejected. It does what the respondent accepted must not be done, namely, to read s 57 as if s 51A were not there, when s 51A is there "and demands by its terms that it be taken into account". Section 57(2) gives to onshore visa applicants the rights described in s 57(2), but ss 51A and 57(2) in combination deny them any further rights. On the other hand, s 57(3) causes the specific obligations contained in s 57(2) not to be imposed: thus s 57(3) prevents the class described in it from enjoying the advantages given by s 57(2) and from suffering the disadvantages created by s 51 A. There is thus no repugnancy in finding an implication in the Act, if that is the correct approach, that persons in the excluded s 57(3) class are to be accorded the benefits of the natural justice hearing rule, while also construing s 57 when read with s 51A as giving onshore visa applicants some of those benefits but not necessarily all of them.

[88] The argument considered independently of s 51 A . Even if s 51A is left out of account, the respondent's submission rests on drawing an inference from the grant of some elements of natural justice to one class of applicants that natural justice to another class is excluded. It would be wrong to infer from the legislative grant of some elements of natural justice to one class that all other elements are excluded in relation to that class by the legislation. ^[108] It is even more plainly wrong to infer from the grant of some elements of natural justice to one class of applicants that natural justice to another class is excluded.

[89] In short, s 57 does not remove the advantages of procedural fairness from the classes of persons described in s 57(3). It simply fails to impose a s 57(2) obligation in relation to that class, while leaving applicable to it whatever general law requirements of the natural justice hearing rule apply.

[90] " Policy choices ". The respondent, perhaps sensing that a construction of the legislation which left offshore visa applicants without any right to deal with "relevant information" lacked attractiveness, submitted that that consequence was but part of a wider scheme to be discerned within the Act, pursuant to which offshore visa applicants received differential treatment compared to onshore visa applicants. Onshore visa applicants are entitled to reasons and merits review, but can only apply once (ss 48-48A). Offshore visa applicants are not entitled to reasons and merits review, but can apply more than once. These differences were said by the respondent to be "the result of policy choices by Parliament, reflecting matters of administrative convenience, including distance, and budgetary and workload considerations." Where the language of the Act establishes differential treatment, it must be given effect whatever the matters underlying the legislative judgment. But the language of s 57 does not create differential treatment in relation to natural justice as extreme as the respondent's submission suggests.

[91] The respondent's submission about the factors underlying the legislative policy choices suggested that the general law requirements of the natural justice hearing rule "would reduce to nothing, or practically nothing, in the case of many [offshore] visa applicants." Even if that is so in some instances, it does not follow that it is necessarily so in others. It does not follow from the limited protection given by the general law requirements of the natural justice hearing rule in the case of some s 57(3) persons that there is no protection at all.

Matters which it is not necessary to deal with

[92] All the respondent's challenges to the appellant's case as set out at the commencement of this judgment fail. It is therefore not necessary to consider various other matters in controversy. Among them are the following. It is not necessary to consider whether the natural justice hearing rule applies because of a presumption that it will not readily be abolished or, as the respondent put it, because of "an implication into the statute". It is not necessary to determine the precise test for ascertaining what language is needed to limit or remove the duty of procedural fairness -- whether language of "irresistible clearness" is needed, or whether language of "a high degree of certainty" suffices. And it is not necessary to consider the three constitutional arguments which the appellant advanced.