Faroque v Minister for Immigration
[2009] FMCA 855
•9 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FAROQUE v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 855 |
| MIGRATION – Visa – Skilled-Australian-Sponsored (Migrant) (Class BQ) visa – review of Migration Review Tribunal decision – natural justice – whether the Tribunal breached the requirements of natural justice – where Immigration officers visited the site of the company at which the visa applicant claimed to be employed – whether the procedure adopted was unfair – whether natural justice denied in a manner not encompassed by Migration Act 1958 (Cth) s.357A – no evidence of procedural unfairness – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.51A, 56, 347, 357, 359A, 476, 478 |
| Clough v Leahy (1904) 2 CLR 139 Kioa v West (1985) 159 CLR 550 Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 Saeed v Minister for Immigration and Citizenship [2009] FCAFC 41 Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287; [1999] FCA 247 Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; 176 ALR 219; 75 ALJR 52; [2000] HCA 57 Mahon v Air New Zealand [1984] AC 808 Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57 Ling v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1069 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; 231 ALR 592; 81 ALJR 515; [2006] HCA 63 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; 222 ALR 411; 80 ALJR 228; 87 ALD 512; [2005] HCA 72 Twist v Randwick Municipal Council (1976) 136 CLR 106; [1976] HCA 58 Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344; [2004] FCAFC 248 Bunnag v Minister for Immigration and Citizenship [2008] FCA 357 |
| Applicant: | OMAR FAROQUE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2840 of 2008 |
| Judgment of: | Scarlett FM |
| Hearing date: | 9 July 2009 |
| Date of Last Submission: | 9 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 9 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $9000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2840 of 2008
| OMAR FAROQUE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant (who will be referred to as the review applicant) in this case applies for review of a decision of the Migration Review Tribunal signed on 28th August 2008, affirming the decision of a delegate of the Minister for Immigration and Citizenship not to grant Skilled-Australian-Sponsored (Migrant) (Class BQ) visas to the visa applicants.
The review applicant seeks the issue of writs of:
a)Prohibition;
b)Certiorari;[1] and
c)Mandamus
[1] There is a typographical error in the amended application, as it seeks the issue of writs of certiorari and mandamus against the “Refugee Review Tribunal”, whereas the second respondent is the Migration Review Tribunal.
The review applicant claims that the Tribunal breached the requirements of natural justice in a manner in which s 357A(1) of the Migration Act 1958 has no application in relation to a site visit to the first visa applicant’s place of employment by members of the staff of the Australian High Commission.
The first respondent, the Minister for Immigration and Citizenship, by a response filed on 21st November 2008, opposes the application and seeks that it be dismissed with costs.
Background
The primary visa applicant, Ms Alfatun Mily Nahar, applied for a subclass 139 (Designated Area Sponsored) visa on 16th May 2006. The other three visa applicants are her husband and two children. They are all citizens of Bangladesh.
Ms Mily is the sister of the review applicant, Mr Faroque, who is an Australian citizen. He is her sponsor and therefore the proper applicant to the Migration Review Tribunal (s 347(2)) and to this Court (s 478).
Ms Mily claimed to have been employed in a skilled occupation and had nominated her occupation as “office manager”. She claimed to have worked as assistant manager and later as administrator for a company in Dhaka, Bangladesh, known as “Atmass Sweaters Ltd”. She claimed to have been in that company’s employment from May 2004 to the date of the application.
An officer of the Department wrote to Mr Faroque on 30th March 2007, advising him that the primary visa applicant had either provided incorrect information or failed to advise that information provided has become incorrect. The letter advised that a visit had been made to Ms Mily’s nominated place of work, Atmass Sweaters:
On 21 December 2006 Immigration officers visited Atmass Sweaters and spoke with the author of the reference letter you provided. The referee claimed to be the managing Director of Atmass Sweaters and several other companies. Officers noted that there were no company signs at the premises. When the officers visited the applicant was not present. The referee stated that the applicant was in charge of salary, leave and other administrative matters, but he could not provide any evidence of the applicant’s employment. When the referee was asked to provide documents relating to the business he could only provide a photocopy of a trade licence from 2004, and claimed that Atmass Sweaters had closed down, but that it had been absorbed by another of his companies, Peerless Sweaters…[2]
Based on further investigation of the applicant’s employment claims and the evidence of the applicant’s employment provided, I am not satisfied that the company Atmass Sweaters existed, nor that the applicant was employed there as an Office Manager as indicated in the employment documents you have provided. I am not satisfied that the applicant meets Regulation 139.225A.[3]
[2] Court Book 174
[3] Court Book 175
The Department’s letter asked for a response by 27th April 2007.
The review applicant’s current solicitors wrote to the Department on 14th May 2007, advising that they had just been appointed and forwarding a number of supporting documents.
On 5th July 2007 a delegate of the Minister refused the application for visas.[4] The Delegate gave these reasons in the Decision Record:
On the basis of the documentary evidence provided with your application, and the documents provided to this office in response to the adverse findings, I am not satisfied that you were employed in the skilled occupation for 12 of the 18 months prior to application lodgement.
The reasons that I am not satisfied that you have been employed in a skilled occupation for 12 of the 18 months prior to the application lodgement are as follows:
· When officers visited your employer you were not present, and you have not addressed this fact in your response to the findings of your investigation.
· Your referee was unable to provide any evidence of your employment, yet in your response to the findings of the investigation you have provided a number of documents, including office circulars and salary sheets for factory employees which had been signed off by you, which could not be provided during the site visit.
· This office was not advised by you until after the attempt to verify your employment that Peerless Sweaters had acquired Atmass Sweaters. The site visit was conducted in December 2006, when, in an effort to explain why he could not provide any documentation, your referee stated that Atmass Sweaters had been absorbed by Peerless Sweaters. You provided evidence of your employment in response to my initial request on 15 January 2007, which included payslips from Peerless Sweaters. Your migration agent now states that you transferred employment into Peerless Sweaters in July 2006. At no time until after the site in December 2006 visit[5] did you indicate that your employment had changed, and I am not satisfied that this version of events has not been contrived for the purpose of meeting the employment requirement of this visa subclass.[6]
[4] Court Book 340-341
[5] sic
[6] Court Book 345
The delegate refused to grant a Class BQ Skilled – Australian Sponsored Migrant Visa to the primary visa applicant (Ms Mily) and all of her family members included in her application.[7]
[7] Court Book 347
Application to the Migration Review Tribunal
On 24th August 2007 the review applicant applied to the Migration Review Tribunal for review of the delegate’s decision.
The Tribunal wrote to the review applicant on 8th April 2008, inviting him to comment on or respond to information that the Tribunal considered would, subject to any comments or response he made, be the reason, or a part of the reason, for affirming the decision that was under review. The letter, which was clearly intended to comply with section 359A of the Migration Act, set out the particulars of the information, which related to the site visit on 21st December 2006.[8] It also set out why the Tribunal considered that the information was relevant and invited the applicant to give comments or respond to the information in writing by 6th May 2008.[9]
[8] Court Book 366
[9] Court Book 367
The review applicant’s solicitors replied tot eh Tribunal’s letter on 21st April 2008, advising that the applicant relied on the evidence previously given to the Department after the letter from the Department seeking comments. The letter went on to say:
In the event the Tribunal is not in a position to make a positive decision on the papers the applicant requests the Tribunal proceed to a hearing.[10]
[10] Court Book 368
The Tribunal wrote to the review applicant’s solicitors on 1st May 2008, inviting him to attend a hearing to be conducted by video conference on 12th June 2008.[11] The review applicant attended the hearing and gave evidence with the assistance of an interpreter in the Bengali language.[12]
[11] Court Book 370
[12] Court Book 379
After the hearing, the Tribunal wrote to the review applicant’s solicitors again, on 21st July 2008. This letter was both an invitation to comment on or respond to certain information under s 359A and an invitation to a further hearing on 26th August 2008.[13]
[13] Court Book 394
The Tribunal sought the review applicant’s comments on the information that the Deputy Commissioner of Taxes in Bangladesh had described the tax documents produced by Ms Mily as “fraudulent”.[14] The Tribunal’s letter also sought comment on the review applicant’s evidence during the Tribunal hearing and inconsistency between that evidence and statements by Dr Moinuddin Ahmed as to why no documents could be provided in relation to Ms Mily’s claimed employment. The Tribunal’s letter sought written comments by 18th August 2008.[15]
[14] Court Book 392
[15] Court Book 394
On 19th August 2008, the Tribunal received a letter, dated the day before, from the review applicant’s solicitors, enclosing copies of a number of documents about Ms Mily’s assets and expenditure[16] and a typed statement from the review applicant.[17]
[16] Court Book 401-424
[17] Court Book 425-426
The review applicant attended the second Tribunal hearing on 26th August 2008. It was conducted by video conference, with the Tribunal in Sydney and the review applicant in Melbourne.[18]
[18] Court Book 427
The Migration Review Tribunal Decision
The Tribunal handed down its decision on 8th September 2008.[19] In its decision, signed on 28th August 2008, the Tribunal affirmed the decision not to grant the visa applicants Skilled-Australian-Sponsored (Migrant) (Class BQ) visas.[20]
[19] Court Book 432, 435
[20] Court Book 438
In its decision, the Tribunal set out that it was required to consider whether the primary visa applicant was employed in a skilled occupation during the period 15th November 2004 to 15th May 2006, as the relevant period of employment was whether Ms Mily had been employed for a period of 12 months in the 18 months immediately before the date of application for the visa.[21]
[21] Court Book 449
The Tribunal considered the evidence of the site visit undertaken by Departmental officers from the Australian High Commission to the premises of Atmass Sweaters in Tejgaon, Dhaka on 21st December 2006. The Tribunal said:
Essentially, the record of the site visit indicates that the visa applicant was not at the office premises on that day. The Department spoke to the visa applicant’s employer, Dr Moinuddin, who informed the Department that he was unable to provide any records of the visa applicant’s employment, such as employment documents, attendance, salary records or any official documents that had the visa applicant’s signature, because he was expecting a visit from the and he had taken the visa applicant’s file home to study the file. The claim has subsequently been made that the Department has visited the Tejgaon office premises and the visa applicant was employed at the Mirpur factory where her office was located and that all associated documentation relating to the visa applicant was maintained at the Mirpur office premises. The claim has also been made that Dr Moinuddin was unwilling to provide the associated documentation because he first wished to ask the visa applicant for her permission before providing any documents to the Department.[22]
[22] Court Book 449 at [58]
The Tribunal considered the evidence of the site visit as adverse to the visa applicant’s claim:
In relation to the site visit, although the Tribunal accepts that Atmass Sweaters at some point became Peerless Sweaters and also accepts that there was an office premises and a factory premises in Tejgaon, the Tribunal does not accept that it credible that no documentation in relation to the visa applicant’s employment could have been provided on the day of the visit. In the context of the visa applicant’s willingness to provide false documentation to the Department in an attempt to support her claimed employment at Atmass/Peerless Sweaters, the Tribunal does not accept any of the reasons posited for the inability/unwillingness of Dr Moinuddin to provide such documentation. The Tribunal does not accept that Dr Moinuddin had taken the visa applicant’s employment file home to study and for that reason could not provide any documentation. The Tribunal does not accept that it is credible that no documents showing the visa applicant’s name could be provided to the Department, even if the visa applicant’s employment file was at home. Nor does the Tribunal accept that Dr Moinuddin was unwilling to provide the documentation because he first wished to check with the visa applicant.[23]
[23] Court Book 450 at [61]
The other matter that the Tribunal considered as weighing heavily against the visa applicant’s credibility was the provision of false documents to the Department:
The evidence also establishes that the Department of Foreign Affairs and Trade, in response to inquiries initiated by the Tribunal, has advised the Tribunal that the visa applicant has provided false taxation documents to the Department. The claim has subsequently been made that the visa applicant’s accountant was responsible for providing the false documentation and the visa applicant did not know that (it) false documentation had been provided.[24]
[24] Court Book 449-450 at [59]
The Tribunal did not accept that explanation, saying:
The Tribunal does not accept the visa applicant’s and the review applicant’s explanation for the provision of false documentation. The Tribunal does not accept that there is any plausible or credible reason as to why the company’s accountants were unscrupulous and would provide false taxation documents to the visa applicant. The Tribunal accepts the review applicant’s claims that there is an abundance of false documentation in Bangladesh. The Tribunal does not accept that this overcomes the Tribunal’s findings that there is no credible explanation as to why the accountant would provide false documentation in relation to the visa applicant’s taxation status. The Tribunal does not accept that the visa applicant was unaware, until notified by the Tribunal, that she had provided false documentation to the Department. The Tribunal considers that the evidence relating to the visa applicant’s willingness to provide fraudulent documentation to the Department (casts) is indicative of the fact that the visa applicant has not given truthful evidence in relation to her claims to have been employed at Atmass/Peerless Sweaters during the relevant period.[25]
[25] Court Book 450 at [60]
The Tribunal was not satisfied that the visa applicant was employed at Atmass/Peerless Sweaters during the relevant period or that she was employed in a skilled occupation. The Tribunal found that the applicant did not meet cl. 139.225A and that the secondary visa applicants, Ms Mily’s husband and children, were unable to meet the secondary criteria for the grant of a Subclass 139 visa.
The Tribunal also considered the primary visa applicant against the criteria for the grant of a Subclass 138 visa and found that she did not qualify.
For those reasons, the Tribunal affirmed the decision not to grant the visa applicants Skilled-Australian-Sponsored (Migrant) (Class BQ) visas.
Application for Judicial Review
The review applicant commenced proceedings by filing an application and affidavit in support on 3rd November 2008. The application was listed for final hearing on 29th January 2009 but adjourned by consent on 16th January 2009.
The applicant relies on this Ground:
The Second Respondent (the Tribunal) breached the requirements of natural justice in a manner in which s 357A(1) Migration Act has no application.
Particulars
(a)The Tribunal adopted and relied upon information, purportedly obtained under s 56 Migration Act, during a site visit by staff of the Australian High Commission in Dhaka to what was said to be Ms Mily’s place of employment.
(b)The circumstances in which information was obtained were objectively unfair.
Particulars of unfairness
(i) The site visit was without notice.
(ii)During the site visit business documents were requested of an officer of a private company by individuals who purported to be officials of a foreign government.
Submissions on behalf of the Applicant
Counsel for the applicant, Mr Karp, submitted that the Tribunal’s reliance on the site visit played a crucial part in the decision. The visit was carried out pursuant to the provisions of s 56 of the Migration Act. There is no provision governing the procedures of the primary decision maker which state how inquiries under s 56 are to be carried out, although s 51A of the Act states:
(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.
Mr Karp submitted that s 56 simply embodies the common law rule that the Crown may make any enquiry it chooses to make (see Clough v Leahy[26] per Griffith CJ at 157). However, enquiries and the gathering of information must be carried out fairly (Kioa v West[27] per Mason J at 485, Brennan J at 614).
[26] (1904) 2 CLR 139
[27] (1985) 159 CLR 550
The submission is that although the Full Court of the Federal Court has held in Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat[28] and Saeed v Minister for Immigration and Citizenship[29] that s 51A excludes the operation of the natural justice hearing rule, those decisions do not apply to s 56, because it does not deal with the natural justice hearing rule but rather with the gathering of evidence.
[28] (2006) 151 FCR 214; [2006] FCAFC 61
[29] [2009] FCAFC 41
Counsel for the review applicant also submitted that the manner in which the site visit was carried out is governed by rules of procedural fairness other than those encompassed by the natural justice hearing rule. If the procedure followed during the site visit was not fair, then the Tribunal’s adoption of the information gained and its use of that information was equally unfair (see Sellamuthu v Minister for Immigration and Multicultural Affairs[30] at 302 per Hill J).
[30] (1999) 90 FCR 287; [1999] FCA 247
It was submitted that the procedure followed during the site visit was unfair because:
·It was carried out without notice by officers of the Australian High Commission at the premises of a private company
·The officers appear to have approached an officer of the company, who may have been otherwise occupied, and asked to see documents relating to a specific employee
·It is not known how long the visit lasted
·It is not known what questions were asked, the tone and content of the conversations or the attitude of the company officer.
It is submitted that this was not a fair procedure because it had all the characteristics of an ambush; it gave no time for the company officer to have records on hand and to answer questions in a timely and calm manner. Thus, Mr Karp submitted that the Tribunal’s adoption of the procedure and the information obtained without further enquiry denied the applicant natural justice in a manner not encompassed by s 357A of the Migration Act.
Counsel for the review applicant relied also on Re Refugee Review Tribunal; ex parte Aala[31] per Gleeson CJ at 88, [2]-[3]; Mahon v Air New Zealand[32] at 820F-H; and Annetts v McCann[33] at 598.
[31] (2000) 204 CLR 82; 176 ALR 219; 75 ALJR 52; [2000] HCA 57
[32] [1984] AC 808
[33] (1990) 170 CLR 596; [1990] HCA 57
Submissions on behalf of the First Respondent
Counsel for the first respondent, Mr Johnson, submitted that there is no authority for the proposition that the natural justice hearing rule, or natural justice generally, involves any obligation that was breached by the Tribunal. He submitted that it was acknowledged in Lay Lat[34] at [67] that natural justice involves a requirement that there be no bias, which is distinct from the common law (natural justice) hearing rule, but this is not a case involving bias or any apprehension of bias.
[34] supra
The submission is that there was no procedural unfairness for these reasons:
a)There is nothing in Kioa v West which would lead to the conclusion that there was procedural unfairness in the way that the site visit was conducted (see also Ling v Minister for Immigration and Multicultural and Indigenous Affairs[35] per Branson J at [48]-[51]).
b)There is no authority that would have required notice to be given to the alleged employer before the site visit was conducted; announcing such a visit may well defeat its purpose.
c)It is a “fair hearing” with which procedural fairness is concerned (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[36] at [25]; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[37] AT [14]-[15] and “the statutory framework within which a statutory decision maker exercises statutory power is of critical importance when considering what procedural fairness requires” (SZBEL at [26]).
d)It is the Tribunal’s decision that is under review, not that of the delegate; no procedural unfairness by the Tribunal can be established simply by showing that there had been procedural unfairness by the delegate. If there had been procedural unfairness, that could be “cured” by independent merits review (see Twist v Randwick Municipal Council[38] at 116; Zubair v Minister for Immigration and Multicultural and Indigenous Affairs[39] at 354 [32]; Yilmaz v Minister for Immigration and Multicultural Affairs[40] at 516-517, [95]-[96], etc);
e)Assuming that the visit by officers of the Australian High Commission was without notice, there is no evidence of anything that amounts to procedural unfairness;
f)There is no foundation in law or fact for the submission that the Tribunal adopted a blatantly unfair procedure because it was not unfair and the Tribunal did not adopt it – all it did was take into account the adverse information obtained; and
g)Procedural unfairness is not about the weight of evidence; what is required by procedural fairness is a fair hearing, not a fair outcome (SZBEL at [25]).
[35] [2004] FCA 1069
[36] (2006) 228 CLR 152; 231 ALR 592; 81 ALJR 515; [2006] HCA 63
[37] (2005) 225 CLR 88; 222 ALR 411; 80 ALJR 228; 87 ALD 512; [2005] HCA 72
[38] (1976) 136 CLR 106; [1976] HCA 58
[39] (2004) 139 FCR 344; [2004] FCAFC 248
[40] (2000) 100 FCR 495; [2000] FCA 906
Counsel for the Minister submitted that s 357A of the Act has the effect that the division in which it appears “provide(s) comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule (Lay Lat at 225, [66]). Again, as McKerracher J held in Bunnag v Minister for Immigration and Citizenship[41] at [31]:
The provisions of s 357A of the Act make it clear that the content of Div 5 of Pt 5 is an exhaustive statement of the natural justice hearing rule as it is to be applied in hearings before the Tribunal.
[41] [2008] FCA 357
Thus, he submitted, the applicant’s case depends upon the proposition not only that there was a breach of the common law natural justice hearing rule but that the rule has room for application in reviewing decisions of the Tribunal notwithstanding that the Tribunal has complied with the statutory provisions governing its own procedure.
Conclusions
In my view, the application should be dismissed for these reasons:
a)There is no evidence that the site visit by officers from the Australian High Commission was procedurally unfair;
b)Even if there some procedural unfairness, it was “cured” by the independent merits review conducted by the Tribunal; and
c)Section 357A of the Act leaves no scope for common law procedural unfairness.
The first point to be made, which is alone sufficient to dispose of the application, is that there is no evidence that the visit by immigration officers attached to the Australian High Commission in Dhaka contained any element of unfairness.
There is nothing intrinsically unfair about making inquiries about the employment status of an applicant for a visa. No evidence has been shown that there is any procedural requirement on officers of the Department that they should give notice before they call at the address of a company where an applicant for a visa claims to have been employed. What happened is that when they did call, the visa applicant was no there and the man to who they spoke was not able to provide any documentation to show that she did work there. The later explanation given by Dr Moinuddin, that he was expecting a visit so he had taken the visa applicant’s file home to read it, is one that neither the Delegate nor the Tribunal accepted.
There is no evidence that the visit by the Departmental officers was conducted in a way that was in any sense oppressive or unreasonable, or that Dr Moinuddin’s will was in some way overborne. If it was not convenient for him to speak to the Departmental officers at the time of the visit, it was always open to him to decline to answer their questions and ask them to leave.
The second point, which in my view is also sufficient of itself to dispose of the application, is that the review applicant sought merits review by the Migration Review Tribunal. It does not even seem to have been argued before the Tribunal that there was some unfairness in the way the site visit was conducted.
It is clear, in my view, that the review by the Tribunal had the power to ‘cure’ any defect that there may have been. In Yilmaz v Minister for Immigration and Multicultural Affairs[42] Gyles J cited the judgment of Mason J in Twist v Randwick Municipal Council[43] at (116):
…the earlier cases should not be regarded as deciding that the presence of an appeal to another administrative body is an absolute answer to a departure from natural justice or the standard of fairness. The existence of such an appeal does not demonstrate in itself that the inferior tribunal is at liberty to deny a hearing. But if the right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have ‘cured’ a defect in natural justice or fairness which occurred at first instance.[44]
[42] supra
[43] supra
[44] (2000) 100 FCR 495 at 517 [96]
The decision of Gyles J in Yilmaz was followed by the Full Court of the Federal Court (Finn, Mansfield and Gyles JJ) in Zubair[45] at [32]:
It should therefore be concluded that the Tribunal did have power to review the delegate’s decision. The Tribunal was, in consequence, able to “cure” the defect in the delegate’s decision: see Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116.[46]
[45] supra
[46] [2004] FCAFC 248 at [32]
Thus, it is clear that if there was a defect in the delegate’s decision arising out of accepting the evidence of the site visit, the Migration Review Tribunal had power to ‘cure’ that defect.
The final point to be made is that the decision of the Full Court in Lay Lat has settled the question of the survival of common law procedural fairness (apart from matters of bias) outside the operation of s 357A:
69. Counsel for the respondent submitted that the words “in relation to the matters it deals with” mean that the decision-maker must, in each case consider whether there is an applicable common law rule of natural justice and then examine the provisions of subdivision AB to see whether it is expressly dealt with.
70. We reject this submission. As was said in VXDC[47] at [31], the decision-maker is likely to be a person without legal qualifications. Parliament could not have intended that “the uncertainties of the common law rules were in some unspecified way and to some unspecified extent to survive.[48]
[47] VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562
[48] (2006) 151 FCR 214 at [69]-[70]
Consequently, it follows that there was no procedural unfairness and no jurisdictional error on the part of the Tribunal. The Tribunal decision is therefore a privative clause decision and not subject to orders in the nature of certiorari, mandamus or prohibition (s 474).
The application will be dismissed with costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 9 September 2009
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