Kim v Minister for Immigration

[2005] FMCA 1863

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KIM & ANOR v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1863

MIGRATION – Review of Migration Review Tribunal decision – refusal of Educational (Temporary) (Class TH) visas – no reviewable error – application dismissed.

Migration Act 1958 (Cth), ss.357A, 375, 375A, 376, 379A, 379C, 483A, Division 8A
Judiciary Act 1903 (Cth), s.39B
Migration Regulations 1994 (Cth), Sch 2, sbcl 422.222(1)

Taylor v Taylor (1979) 143 CLR 1
Hoskins v Van Den-Braak (1998) 43 NSWLR 290
Clements v Independent Indigenous Advisory Committee (2003) 131 FCR 28
Cameron v Cole (1944) 68 CLR 571
O’Sullivan v Repatriation Commission (2003) 74 ALD 407
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475
Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 128 FCR 359
Moradian v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1590
WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] 204 ALR 624
NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 456
Xiao v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCA 1472
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126
SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493
VXDC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1388
Wu v Minister for Immigration & Multicultural & Indigenous Affairs [2003] 133 FCR 221
WAID v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 220

Applicants: YONG JA KIM & ANOR

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File No: SYG3156 of 2004

Delivered on: 16 December 2005

Delivered at: Sydney

Hearing date: 3 November 2005

Judgment of: Lloyd-Jones FM

REPRESENTATION

Counsel for the Applicants: Mr B Zipser

Solicitors for the Applicants: Davidson James & Associates

Counsel for the Respondents: Mr D Jordan

Solicitors for the Respondents: Phillips Fox

ORDERS

1. The application is dismissed.

2. The applicants are to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3156 of 2004

YONG JA KIM & ANOR

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 22 October 2004 for judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 15 September 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 24 March 2003 to refuse to grant the primary visa applicant, Ms Yong Ja Kim, her spouse, Mr Il Soung Won, and her children, Dah Bin Won and Yoo Bin Won Educational (Temporary) (Class TH) visas. The applicants seek relief in the form of constitutional writs against the decision of the Tribunal.

2. In these proceedings the primary visa applicant, Ms Yong Ja Kim, filed an affidavit sworn by her on 22 October 2004 (“the affidavit of the primary visa applicant”).

3. The respondent filed and applied for an affidavit of Jonathan Willoughby-Thomas, District Registrar of the Migration Review Tribunal sworn on 27 October 2005 to be admitted into evidence (“the affidavit of Mr Willoughby-Thomas”).

Background

1. Ms Yong Ja Kim, the primary visa applicant, a national of the Republic of Korea, born on 19 September 1996, applied with her spouse, Mr Il Soung Won, and her children, Dah Bin Won and Yoo Bin Won, to the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act”) for Educational (Temporary) (Class TH) visas on 25 October 2002 (Court Book pp.1-9) (“CB”). On 24 March 2003 the delegate refused to grant the visas (CB pp.10-14) and on 23 April 2003 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.69-74). The decision was reviewable by the Tribunal and the application for review was properly made and combined at lodgement, by persons with standing to apply for review (CB p.96).

2. The visa applicants entered Australia on Subclass 976 visas on

   
   

   31 March 2001.  They departed on 22 July 2002 and returned to Australia on 25 July 2002 on a Subclass 956 visa.  The visa applicants’ visas expired on 25 October 2002 and since then the visa applicants have held bridging visas granted on the basis of the applications for review (CB p.97).

3. The visa application was made on the basis that the primary visa applicant had been nominated as a trainee of DNI Global Pty Ltd (the nominator).  The proposed occupational training to be provided by the nominator was “learning the techniques of car wash operation”.  In her visa application, the primary visa applicant indicated that she was planning to receive training “to know how to set up, organise and manage the operation of the new steam car wash business for one year” and that these skills were relevant to her current employment or studies, as the training she would receive in Australia would “help me to franchise business in South Eastern Asian countries”.  The primary visa applicant stated that her proposed period of stay in Australia was two years (CB p.97).

4. The delegate refused to grant the visas on 24 March 2003, as the primary visa applicant had not applied on the basis of occupational training to be provided by the Commonwealth and therefore had to satisfy the delegate that the Minister had approved a nomination in respect of the occupational training.  The nomination lodged by DNI Global Pty Ltd had been refused on 24 March 2003 (CB p.97).

Applicant’s claim

1. On 25 October 2002 the primary visa applicant lodged a nomination for occupational training with the Department (CB pp.17-58). In order to qualify for the Subclass 442 occupational trainee visa the primary visa applicant had to comply with clause 422.222(1) in Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). In summary, the application contained the following information:

   a)The nominating organisation was DNI Global Pty Ltd (ACN 099 775 587) (CB pp.18-19).

   b)The Managing Director of the nominator was the primary visa applicant’s spouse.

   c)

   The proposed training authority was “Steam Jet Car Wash” at

   
   

   2 Devlin Street, Ryde (CB p.17).

   d)The objective of the proposed training was:

   “To enhance the skills and techniques of the world’s first steam car wash machine business operation.”   (CB p.17).

2. On 6 November 2002 the Department wrote to the nominator requesting further information about the nominator and the nature and duration of the training program (CB pp-59-61).  However, the Department did not receive a response to that letter.  On 24 March 2003 a delegate of the respondent made a decision refusing to approve the nominator’s nomination for the occupational training of the primary visa applicant (CB pp.62-65).  On the same day, the same delegate refused to grant a visa to the primary visa applicant on the ground that the nominator was not an approved occupational training organisation.

3. On the 23 April 2003 the primary visa applicant applied to the Tribunal for a review of the delegate’s decision refusing to grant her a visa (CB pp.69-74).  In that application the primary visa applicant provided her address for receipt of correspondence and the daytime telephone contact number.  On 19 April 2004 the Tribunal wrote to the primary visa applicant requesting additional information (CB pp.76-77).  On

   
   

   26 May 2004 that information was provided to the Tribunal in response to some of the categories of information requested (CB pp.78-84).  On 3 June 2004 the Tribunal wrote to the primary visa applicant inviting her to appear and give evidence before the Tribunal at a hearing on

   
   

   11 August 2004 (CB pp.85-90).  The primary visa applicant claims she did not receive the Tribunal’s letter (the affidavit of the primary visa applicant).  On 15 September 2004 the Tribunal handed down its decision affirming the delegate’s decision under review to refuse to grant the primary visa applicant a Subclass 422 Occupational Trainee visa (CB pp.93-99).

Application for review of the Tribunal’s decision

1. On 22 October 2004 the solicitors acting for the applicants filed an application for review under s.39B of the Judiciary Act 1903 (Cth) together with an affidavit of the primary visa applicant sworn on the same date. On 7 February 2005 the solicitors acting for the applicants filed an amended application setting out the following grounds:

   1.The purported decision of the Migration Review Tribunal is null and void because of jurisdictional error and exceeded jurisdiction in the making of the decision by failing to notify the applicant:

   Particulars

   There is a letter from the Tribunal about the hearing (page 85 of court book), but there is no evidence available that the letter was notified to the applicant.

   There is no evidence to indicate that the invitation notified to the applicant by registered post or personal service.

   The letter dated 19 April 2004 for additional document is not in the appeal book.  However, the same letter the applicant gave with the additional document is at page 76 and 77 of the appeal book.

   The applicant’s intention to submit the documents as requested and wanted to participate at the hearing if so requested.  However, she did not receive the invitation letter dated on 03 (or 3) June 2004 (CB85).

   2.Not pressed

   3.The Tribunal erred in law and thereby fell into jurisdictional error and acted without jurisdiction in the making of the decision in denying natural justice, or procedural fairness to the applicant.

   Particulars

   The Tribunal did not afford an opportunity for hearing to the applicant to explain his case.

   4.Not pressed

2. Mr Zipser, Counsel appearing for the applicants, submitted that the claims pressed by the primary visa applicant could be summarised as follows:

   a)The primary visa applicant was not notified of the hearing before the Tribunal scheduled for 11 August 2004.  As a result, she lost the opportunity to attend the hearing.  In the circumstances, there was a denial of procedural fairness amounting to jurisdictional error (the “missed hearing issue”).

   b)A question of what effect s.357A has on whether there was jurisdictional error (the “s.357A issue”).

Applicant’s submission

1. Counsel for the applicants referred to the affidavit of the primary visa applicant sworn and filed on 22 October 2004 and indicated to the Court that he would rely upon that affidavit and read it into evidence.  Counsel for the applicants indicated that he had no objection to the affidavit filed on behalf of the respondents, being the affidavit of Mr Willoughby-Thomas sworn on 27 October 2005 and did not seek to ask any questions in cross examination arising from that affidavit.

2. Counsel for the applicants advised the Court that he would rely upon the amended application filed on 7 February 2005 but would no longer press Ground 4.  In respect of Grounds 1 and 2, Counsel initially acknowledged that the affidavit of Mr Willoughby-Thomas appeared to respond to the issues raised in those two grounds.

3. Counsel for the applicant was requested to clarify the concessions that he was making.  Mr Zipser confirmed that he would concede Ground 2 but retain Ground 1 to the extent that the particulars pleaded in that ground listed, clarity of the issues raised under Ground 3, and that Ground 1 would be retained for that purpose.

4. Counsel indicated to the Court that the argument that he would present fell within Ground 3 of the amended application.  The argument was that, even if the Tribunal sent a letter to the primary visa applicant notifying her of the hearing, there could still be circumstances where there was a denial of procedural fairness.

Respondent’s submissions

1. Counsel for the respondent confirmed that he reads the affidavit filed on behalf of the first respondent, being that of Mr Willoughby-Thomas sworn on 27 October 2005.  Further, the respondent had no objection to the affidavit of the primary visa applicant and did not seek to cross examine her on its contents.

Reasons

1. Mr Zipser, Counsel for the applicants, indicated there are a number of cases in which findings have been made by the Court that so long as the Tribunal complies with statutory procedures, in relation to notification, then in circumstances of those cases there is no denial of procedural fairness.  However, there is a line of authority that a person against whom a claim or charges are made must be given a reasonable opportunity to appear and present his case and that reasonable opportunity requires the applicant to be notified of the hearing.  It is not enough that the notification be sent as a denial of procedural fairness arises if the notification is not received.  In support of this contention, Mr Zipser took the Court to the decisions of Taylor v Taylor at 4-7; Hoskins v Van Den-Braak; Clements v Independent Indigenous Advisory Committee at [33].

2. Mr Zipser conceded that in Taylor v Taylor and Hoskins v Van Den-Braak, those cases dealt with the question of whether a Court had an inherent power to set aside a judgment made ex parte and the appellate Courts held that where there had been a denial of procedural fairness or natural justice, the Court did have an inherent power.  Mr Zipser acknowledged that in the present case the question was slightly different, being whether a Court on judicial review should set aside a decision.  While the question is different, Mr Zipser argued that the common element to both questions was that if there has been a denial of procedural fairness and natural justice then, subject to a consideration of legislation which seeks to limit the operation of natural justice, then the principle should apply.

3. Mr Zipser contended that the decisisons of Cameron v Cole; Taylor v Taylor and Hoskins v Van Den-Braak stood for the principle that where person in an administrative context has been unaware of a hearing and has lost an opportunity to vent their case because they were not notified of the hearing, then there has been a denial of procedural fairness.

4. Mr Zipser then referred the Court to Clements v Independent Indigenous Advisory Committee which concerned a decision of the Committee to exclude the applicant from a roll of persons who could vote in an election on the ground that he was not a member of the Aboriginal race of Australia.  The applicant applied to the Administrative Appeals Tribunal and an officer of that Tribunal advised the applicant that his application was listed for hearing on Tuesday, 15 October 2002.  However, the Full Federal Court accepted that the letter was not posted until 15 October 2002 and the applicant did not receive the letter until after the hearing.  The question of law identified in the applicant’s Notice of Appeal was that he was denied the opportunity to attend the hearing in relation to his application to review the decision of the Independent Indigenous Advisory Committee.  He was denied the opportunity to attend because of an administrative error that occurred at the Tribunal.  Relatively, there was not an error by the decision maker or the applicant, but an error by a third party being a Registry officer in the Tribunal.

5. In the Full Federal Court decision of Clements v Independent Indigenous Advisory Committee, their Honours Gray ACJ and North J, stated the error should be described as a denial of procedural fairness.  Their Honours stated that it is not a necessary element of a denial of procedural fairness that it be the result of intentional conduct or even of neglect.  It is enough that it occurred and their Honours referred to the decision in Cameron v Cole and Taylor v Taylor.  Each of those cases concerned the absence of a party at the time appointed for a hearing, through no fault of that party.  Mr Zipser argued that this was a principle in the present case that the absence was through no fault of the applicants.  Gray ACJ and North J at [35] concluded that there was a denial of procedural fairness and stated:

   “The unintentional failure of the Tribunal to provide the applicant with a proper opportunity to present his case was a jurisdictional error.”

6. Mr Zipser also referred to the decision of O’Sullivan v Repatriation Commission which is a decision of Sackville J which deals with similar issues.  The applicant had a case in the Administrative Appeals Tribunal where he was cross examined on a document that was incomplete which resulted in the applicant being disadvantaged because of that missing material.  However, the decision maker of the Tribunal was not aware that that had occurred.  The question was whether there could be a denial of procedural fairness when there was no fault on the part of the decision maker.  His Honour Sackville J found that there could be a denial of procedural fairness when there was no fault on the part of the decision maker.

7. Mr Jordan, Counsel for the respondent, submitted that there was a principle flaw in the arguments being promoted by Mr Zipser.  Mr Zipser, in advancing his argument, did so in the abstract and without reference to the specific statutory framework which applies and governs the Tribunal’s power.  Mr Jordan submitted it was quite clear and well established that above all else in the context of a Tribunal which is created by statute and deals with the rights and obligations derived from statutes, the critical question in determining the scope of procedural fairness arises from a construction of the statute itself:  Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation at 503; Applicant NAHF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (“NAHF of 2002”) per Hely J.

8. Mr Jordan submitted that s.357A of the Act clearly intends to displace any common law rules concerning procedural fairness. The issue of some ambiguity, which has arisen in relation to the construction of this section, turns on the wording that “this Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with” (emphasis added).  Mr Jordan submitted that it is those words which have provided the scope of some ambiguity and construction.  There is some divergence in the Federal Court authority at the present as to what the words:  “in relation to the matters it deals with” means.  The narrow construction of those words derives from the decision of Moradian v Minister for Immigration & Multicultural & Indigenous Affairs (“Moradian”) and WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (“WAJR”) per French J. In those two authorities a narrow approach was taken, essentially whereby their Honours proceed on the basis that in order to understand whether the subdivision or the particular issue is a matter dealt with, you need to go through the subdivision, or the other matters which are covered in subsection (2), and find a power which does deal with that matter. If you can find such a power, then the natural justice hearing rule is excluded. If you cannot find something relatively specific to that issue, then their Honours have proceeded on the basis that the natural justice hearing rule is not excluded. That is the narrow approach.

9. Mr Jordan submitted that the broader approach, supported by much more weight of authority, is that it is not necessary to find a specific section in the subsection or related provisions which specifically deals with the matter:  NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (“NAQF”) per Lindgren J at [39]:

   “It is inconceivable that the legislature meant the displacement of the natural justice hearing rule to be co-extensive with, and not to go beyond, the precise text of the express protections of a procedural fairness kind, to be found within Div 5 (or ss 375, 375A and 376 and Div 8A).”

   That approach is supported by several more decisions which are referred to below.

1. Section 357A(2) is important and applicable in this case. It applies relevantly at ss.375, 375A and 376 and importantly at Division 8A, insofar as they relate to the Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters they deal with. Division 8A is important because that is the Division within which s.379A and s.379C fall. In this case, the applicants’ submissions are based on the issue that the applicants did not receive a letter giving notice of the hearing. Mr Jordan submitted that within Division 8A there are specific provisions which deal directly and expressly with the question of the receipt of the notice of the invitation letter which would cover the circumstances of the decision of His Honour Gray J in Moradian. From s.357A(2), it is clear that Division 8 can be an exhaustive statement of the natural justice requirements, but only insofar as they relate to this Division being Division 5. Section 360A falls within subsection (5) and subsection (2) of that section provides that the notice of invitation to a hearing must be given to the applicants in this case by one of the methods specified in s.379A. It is the words in that subsection which make Division 8A also fall within the exhaustive statement in s.357A. Section 379A also falls directly under Division 8A for the purposes of s.357A(2). Section 379A provides the method by which the Tribunal gives documents to persons such as the applicants. In this case, it is s.379A(4) which was the method used by the Tribunal to notify the applicants.

2. Section 379C(4) deals specifically with the question upon which the applicants’ submissions are based, namely receipt of the letter giving notice of the hearing. The section provides:

   (4)If the Tribunal gives a document to a person by the method in subsection 379A(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:

   (a)if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or

   (b)…

3. Mr Jordan submitted that this section does specifically deal with the matter for the purpose of s.357A and even on the most narrow approach to the construction of that provision, the natural justice hearing rule is excluded in terms of common law and this is an exhaustive statement of the requirements. In those circumstances, all the prerequisites for the exercise by the Tribunal of its discretion to proceed without a hearing were met. Therefore, even if the primary visa applicant did not receive the letter she is taken to have received it pursuant to those provisions: NAHF of 2002 per Hely J at [25]-[30] where his Honour considers s.425 of the Act which is the equivalent provision to s.360 but in relation to the operation of the Refugee Review Tribunal and his Honour applies the decision of Xiao v Minister for Immigration & Multicultural & Indigenous Affairs (“Xiao”) per Wilcox J.

4. The decision of Xiao related to a case where the applicant sent a letter to the Refugee Review Tribunal requesting an adjournment of a hearing which was not received by the Tribunal member. In that case, even though through no fault apparently by the applicant, the request for an adjournment was not received and the conclusion was that the obligation in s.425 (equivalent to s.360) which was to issue an opportunity to a hearing by an invitation was met. In those circumstances, there was no failure to comply with those conditions. Returning to NAHF, Hely J then moved on to consider the situation under natural justice common law. Those statements made by his Honour are made in a case to which the exhaustive statement provisions, such as s.357A did not apply. See also the Full Federal Court decision in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR at [35]-[38] which deals specifically with s.357A.

5. Counsel for the respondent referred the Court to the decisions of Moradian; SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs; VXDC v Minister for Immigration & Multicultural & Indigenous Affairs, NAQF, Wu v Minister for Immigration & Multicultural & Indigenous Affairs, WAJR and WAID v Minister for Immigration & Multicultural & Indigenous Affairs in which the respondent contends that even on the narrowest approach there is a very specific provisions in s.357A which excludes any further natural justice requirements.

6. In the decision of Moradian per Gray J the matter was whether or not the adverse information concerning the applicant being paid or acting on a voluntary basis needed to be provided to the applicant. The case turned upon a submission made by Counsel for the applicant which was accepted by Gray J at [28] of the decision. His Honour stated:

   “… These words do qualify the words that precede them. They make plain an intention that subdiv AB of Div 3 of Pt 2 of the Migration Act is not to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to every facet of that rule, but only in relation to the matters with which the provisions of subdiv AB deal. The question in the present case is how those matters are to be characterised? Counsel for Mr Moradian argued that, because of the exclusionary provision in s 57(3), the matter with which that section deals is the right to be notified, and to comment upon or to refute, relevant adverse information in relation to an application for a visa of a kind that can be granted when the applicant is in the migration zone. The matter of the right to be notified of, and to comment upon or to refute, relevant adverse information in relation to an application for a visa that cannot be granted when the applicant is in the migration zone is not dealt with.”  (Emphasis added)

7. Mr Jordan brought to the Court’s attention that s.57 is similar but not identical to s.424A in terms of the requirement to provide particulars of adverse information. The exception in subsection (3) is quite particular and does not have any equivalent in relation to the Tribunal’s power. Subsection (3) is:

   “This section does not apply in relation to any application for a visa unless the visa can be granted when the applicant is in the migration zone.”

8. Mr Moradian’s visa was not one of those visas.  Mr Moradian’s visa was the kind of visa that could not be granted when he was in the migration zone.  In that case, it was certainly open and it was accepted by his Honour for it to be contended that there was no specific provision dealing with that particular matter.  It was submitted that when Moradian is understood in that context it does not provide any assistance to the applicant in this case because unlike Moradian in this case there is a specific provision dealing with receipt of the relevant notice.  Mr Jordan submitted that the approach in Moradian is the high water mark in terms of the narrow approach.

9. In SZBDF, her Honour Branson J at [11]-[17] contrasts the diverging approaches.  Her Honour summarises the approaches of French J in WAGR and Gray J in Moradian and then goes on to deal with the more general construction applied largely followed by Lindgren J in NAQF. Her Honour at [17] applies and prefers the more general construction by Lindgren and Hely J over the narrow approach of French J and Gray J. In VXDC his Honour Heerey J traces the history of the provisions relevant to this issue and then at [27]-[31] applies and accepts the approach of Lindgren J in NAQF. Lindgren J stated that it was inconceivable that the legislature meant the displacement of natural justice hearing rule to be co-extensive with and not go beyond a precise text and expressed protection of procedural fairness. His Honour Heerey J at [30] stated:

   “In the present case it is not easy to see how the drafters of the Explanatory Statement and the Minister could have made it any plainer that the intent of the 2002 amendments was to reverse the result of Miah and provide comprehensive procedural codes which made detailed provision for procedural fairness but excluded the common law natural justice hearing rule.”

10. In NAQF Lindgren J at [59] adopts the same approach as Branson J, Heerey J and Hely J respectively: see also Wu per Hely J at [23].

11. In WAJR French J also adopted the narrower approach taken by Gray J in Moradian.  In WAJR French J had to consider the failure to alert an applicant to an adverse critical issue which did not fall within s.424A scope of relevant adverse information. The way in which French J approached the issue was to conclude that either it was a breach of the hearing rule in s.425 because the Tribunal had not alerted the applicant to a critical issue or if it did not fall within s.425 then it was not a matter dealt within the subsection and the common law procedural fairness continued to apply: see [57]-[59].

12. The decision of WAID dealt with a more straightforward set of facts, namely whether or not general country information that falls within s.424 of the Act and whether the failure to put that information to the applicant is a denial of procedural fairness. His Honour French J gave detailed consideration to the operation of s.422B. His Honour acknowledges that the section is not entirely without difficulty in its application and raises the issue as to some scope of ambiguity in the words in relation to the matters it deals with. His Honour states at [59]:

    “ …When read with s 422B, in my opinion, s 424A is now to be treated as exhaustive of the requirements of procedural fairness relating to the applicant's right to comment on adverse material which is known to and is to be relied upon by the Tribunal.”

13. Mr Jordan, Counsel for the respondent, submitted that in WAJR where French J applies the narrower construction could not find a specific power was satisfied that there was some remedy in procedural fairness.  However, his Honour was satisfied that there was a specific provision dealing with the matter and consequently that the analysis was not required to proceed any further.  Mr Jordan submitted that in this case as there is a specific provision dealing with the complaint which is the genesis of the primary visa applicant’s argument, namely that she did not receive the letter then the analysis does not require to be taken further because there is a provision dealing with that outcome and that approach does not result in any breach of procedural fairness.

14. Both Counsel made strong submissions as to the statutory interpretation to be applied in this matter.  I believe the correct approach is that advocated by Mr Jordan on behalf of the respondent and I am guided in that decision by his Honour Heerey J in the decision of VXDC particularly [28]-[31] where his Honour considers the intent of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (No. 60) (Cth) which came into effect on 4 July 2002.  His Honour notes at [31]:  “… essentially the same procedural codes were introduced for a wide range of administrative decision-making functions under the Migration Act, in many cases no doubt made by officers who are not legally qualified. Parliament cannot have intended that the uncertainties of the common law rules were, in some unspecified way and to some unspecified extent, to survive”.

15. On this analysis, Ground 3 of the applicants’ application for judicial review, which is the only ground pressed, cannot be sustained.

Conclusion

1. The application for judicial review filed on 22 October 2004 cannot be sustained on the grounds pressed and cannot succeed.  The application should be dismissed.

2. I am satisfied that an order for costs should be made in this matter.

   
   

   I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:  Menna McMullan

Date:  16 December 2005