Saeed v Minister for Immigration and Citizenship [2009] FCAFC 41 (1 April 2009)

Last Updated: 2 April 2009

FEDERAL COURT OF AUSTRALIA

Saeed v Minister for Immigration and Citizenship [2009] FCAFC 41

STATUTES – whether s 51A of the Migration Act 1958 (Cth), read with s 57(3), excludes the common law duty of procedural fairness – whether observations in Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 were obiter dicta – whether Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 should be followed.

PRACTICE AND PROCEDURE – considerations of comity in relation to questions of statutory construction – resolution by a Full Court of conflicting views about the meaning and effect of s 51A of the Migration Act 1958 (Cth) – what would be necessary to justify departure from the Full Court analysis.

MIGRATION – application for Skilled Independent visa – procedural fairness – opportunity to respond to critical issue on which decision likely to turn – right to comment upon adverse material from third party – whether critical issue obvious to applicant – whether issue apparent from nature or terms of statute – whether common law procedural fairness excluded by s 51A of Migration Act 1958 (Cth) – common law held excluded





Migration Act 1958 (Cth) ss 13, 14, 51A(1), 57, 57(1)(b), 189, 196, 338, 357A, 422B
Migration Regulations 1994, Schedule 2, cll 175.211(a), 175.412

Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 cited
Antipova v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 584; (2006) 151 FCR 480 disapproved
Bahonko v Sterjov [2007] FCA 1341; (2007) 163 FCR 318 cited
BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157; (2007) 162 FCR 234 cited
Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 cited
Cooper v Commissioner of Taxation [2004] FCA 1063; (2004) 139 FCR 205 cited
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 cited
Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 followed
Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586 cited
Moradian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1590; (2004) 142 FCR 170 cited
Newcastle City Council v GIO General Limited [1997] HCA 53; (1997) 191 CLR 85 cited
Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1263; (2003) 133 FCR 190 cited
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 cited
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 followed
VXDC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1388; (2005) 146 FCR 562 cited
Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1249; (2003) 133 FCR 221 cited



AMIRA SAEED v MINISTER FOR IMMIGRATION AND CITIZENSHIP
NSD 1956 of 2008

SPENDER, BUCHANAN AND LOGAN JJ
1 APRIL 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1956 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

AMIRA SAEED Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGES:	SPENDER, BUCHANAN AND LOGAN JJ
DATE OF ORDER:	1 APRIL 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1956 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

AMIRA SAEED Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGES:	SPENDER, BUCHANAN AND LOGAN JJ
DATE:	1 APRIL 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 In order to succeed in her appeal it was necessary for the appellant to persuade us to depart from the analysis of certain provisions in the Migration Act 1958 (Cth) ("the Act") by a Full Court of this Court less than three years ago (Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 ("Lay Lat") at [60]-[70]. It was accepted that we would not do so, in accordance with convention, unless we were satisfied that the judgment in Lay Lat was plainly or clearly wrong. The analysis in Lay Lat was correct and the appeal cannot succeed.

Background

2 The appellant is a citizen of Pakistan. On 13 November 2007 she made an application under the Act for a Skilled – Independent visa (Subclass 175). Unless the appellant was the holder of a Subclass 444 (Special Category) visa (which is available only to citizens of New Zealand) it was necessary that she be outside Australia in order for the visa she had sought to be granted (Migration Regulations 1994 Sch 2 cl 175.412). That requirement was, as will be seen, significant. Also significant was the fact that the decision which was in due course made about the visa application was not reviewable by either the Migration Review Tribunal ("the MRT") or the Refugee Review Tribunal ("the RRT") which are each established under the Act. In the case of the RRT that was because the application was not for a protection visa. In the case of the MRT it was because it did not fall within the list of decisions set out in s 338 of the Act.

3 The effect of the requirement that the appellant be outside Australia in order to be granted the visa which she had sought, and the fact that a decision refusing to grant such a visa was not reviewable by the MRT or the RRT, was that the obligations imposed upon the Minister (and his delegates) by s 57 of the Act did not apply to consideration of her application. Section 57 imposes a statutory obligation to provide certain information to a visa applicant but the obligation is expressed in qualified terms and it is subject to two important exceptions set out in s 57(3), each of which applied in the present case. Section 57 provides as follows:

"(1) In this section relevant information means information (other than non-disclosable information) that the Minister considers:

(a) would be the reason, or a part of the reason, for refusing to grant a visa; and

(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and

(c) was not given by the applicant for the purpose of the application.

(2) Subject to subsection (3), the Minister must:

(a) give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and

(c) invite the applicant to comment on it.

(3) This section does not apply in relation to an application for a visa unless:

(a) the visa can be granted when the applicant is in the migration zone; and

(b) this Act provides, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa."

(Original emphasis.)

4 The critical issue in the present appeal is whether, despite the fact that the obligations in s 57 did not apply to consideration of the appellant’s application for a visa, there was some other obligation to provide her with "procedural fairness".

The Delegate’s Decision

5 One of the requirements to be satisfied for the grant of a Subclass 175 visa (at least in the circumstances of the present appellant) was that the appellant had "been employed in a skilled occupation for at least 12 months in the period of 24 months ending immediately before the day on which the application was made" (Migration Regulations 1994 Sch 2 cl 175.211(a)).

6 The appellant had undertaken some study in Australia and had obtained a Certificate III in Hospitality (Asian Cookery). Trades Recognition Australia (a division of the Commonwealth Department of Employment and Workplace Relations) classified her for migration purposes in the "tradespersons and related workers" group. The appellant also provided documents to demonstrate recent employment in a skilled occupation for at least 12 months. They were, on their face, certificates and copies of records from "7 Brothers Hotel and Restaurant" in Rawalpindi, India indicating that she had worked in the restaurant as a cook from March 2006 until 6 May 2008.

7 However, on 16 July 2008 a delegate of the Minister refused the application for a visa. The decision of the delegate refusing the visa application recorded the following:

"Australian immigration officers in Pakistan conducted checks against your claim for work experience as a Cook at 7 Brothers Hotel and Restaurant. The following adverse information was discovered during the course of these checks: ● No employee Records were on the premises ● DIAC Staff were advised that a woman has never worked in the kitchen I have now reviewed all of the employment evidence relevant to your claimed employment with 7 Brothers Hotel and Restaurant for the period 01 March 2006 to 13 November 2007. My conclusion is that I am not satisfied with your claimed employment in this period. Serious concerns have been raised in the process of this Department attempting to verify your claims, and in my assessment I can not find your employment claims to be adequately substantiated. I have considered the documents that you have provided, and the information available on your file, and I conclude that the evidence of employment provided with your application and submitted to Trades Recognition Australia (TRA) to obtain a favourable skills assessment, is false or misleading. I therefore find that you do not meet the requirement at clause 175.211 of the Migration Regulations 1994, because the use of this qualification was false or misleading in a material particular."

8 The delegate did not draw to the appellant’s attention the information which had been obtained from the immigration officers in Pakistan or give her any opportunity to make any comment upon that information.

The proceedings in the Federal Magistrates Court of Australia

9 On 4 September 2008 the appellant commenced proceedings in the Federal Magistrates Court of Australia ("the FMCA") seeking judicial review of the decision of the delegate. At the proceedings before the FMCA the appellant was represented by counsel. The ground upon which she relied to challenge the decision of the delegate was expressed as follows:

"In the absence of a statutory duty to give to the Applicant ‘natural justice’, the decision maker failed to comply with the natural justice hearing rule Particulars. The decision maker initiated checks to verify the applicant’s claims for work experience and became seized of adverse information which was not communicated to the Applicant so as to accord with the requirement for her to have the benefit of the natural justice hearing rule." (Original emphasis removed.)

10 However, it was accepted that the Federal Magistrate was bound by authority in this Court, which we shall discuss in greater detail, to conclude that the application for judicial review could not succeed. In the present appeal the appellant challenged the authorities which dictated that result, submitting that they were not binding and should not be followed.

The Statutory Provisions

11 The visa system is established by the Act. Non citizens of Australia must hold a visa in order to lawfully remain in Australia (ss 13, 14). Unlawful non-citizens must be taken into immigration detention (s 189) and be held until removed from Australia or granted a visa (s 196). Procedures governing applications for visas are dealt with in Subdiv AA – "Applications for visas" – of Div 3 of Part 2 – "Control of arrival and presence of non-citizens". Subdiv AB of Div 3 of Part 2 of the Act sets out a number of requirements to be observed in relation to visa applications. Some of those requirements applied to the appellant, but some did not. One requirement which did not apply to the appellant was that imposed by s 57 of the Act which was earlier set out. The consequence for the appellant was that there was no statutory obligation upon the delegate to inform the appellant of the matters disclosed by the immigration officers in Pakistan. The appeal in the present case was based upon the contention that there was, nevertheless, a common law obligation upon the delegate to provide procedural fairness to the appellant and, accordingly, to disclose the information to her and give her a chance to comment on it.

12 The Minister’s response to the appeal fell into two broad categories. First, the Minister argued that the exclusion of the appellant from the obligations stated in s 57, by reason of the operation of s 57(3), disclosed a legislative intent that there be no obligation to provide the information to the appellant, whether under the Act or at common law. Secondly, the Minister argued that the effect of s 51A(1) of the Act was, if there was otherwise any doubt about it, to exclude any common law rule which might otherwise require procedural fairness to be extended to the appellant by providing the information in question to her and giving her a chance to comment on it. Section 51A(1) (which appears in Subdiv AB of Div 3 of Part 2 of the Act) provides:

"(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."

13 It should be noted also that s 357A and s 422B of the Act make similar provision with respect to the obligations upon the MRT and the RRT when conducting the reviews of decisions to refuse a visa which are committed to each of them.

Earlier authority in the High Court and this Court

14 Sections 51A, 357A and 422B were each placed in the Act in response to the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 ("Miah"). In Miah a citizen of Bangladesh had entered Australia and applied for a protection visa. He claimed to fear persecution from the Bangladesh Nationalist Party ("BNP") which was the ruling party in Bangladesh. Between the time of the application and the decision of a delegate who refused it the BNP went from government to opposition. That was a circumstance taken into account by the delegate when refusing to grant a visa but he did not provide Mr Miah with an opportunity to comment on the significance of the changed circumstances. Section 57 was in the same terms as now but s 51A did not appear in the Act.

15 A majority of the High Court thought that Mr Miah had been denied procedural fairness. Although the information in question was "country information" and therefore not the subject of a statutory requirement to allow comment the majority took the view that the legislature had not shown a clear intention to exclude the requirements of procedural fairness. Gaudron J said at [90] (dealing with Subdiv AB of Div 3 of Part 2 of the Act):

"90 Whether the rules of natural justice derive from the common law or whether they are implied by the common law, the question that presently arises is not whether subdiv AB constitutes a code. Rather, if natural justice is a common law duty, the question is whether the provisions of that subdivision manifest a clear intention that that duty be excluded. On the other hand, if the rules of natural justice are seen as implied by the common law, the question is whether the provisions of subdiv AB manifest an intention that that implication not be made. Whatever approach is adopted, in the end the question is whether the legislation, ‘on its proper construction, relevantly (and validly) limit[s] or extinguishe[s] [the] obligation to accord procedural fairness’."

and at [99]:

"99 The basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet the case that is put against him or her. Mr Miah was not given the opportunity to put a case by reference to the change in government in Bangladesh or to answer the case made against him by reference to that change. Procedural fairness required that he be given that opportunity." (Footnotes omitted.)

16 McHugh J said at [126]:

"126 It is now settled that, when a statute confers on a public official the power to do something which affects a person’s rights, interests or expectations, the rules of natural justice regulate the exercise of that power ‘unless they are excluded by plain words of necessary intendment’."

17 His Honour footnoted this statement with a reference to the judgment of the High Court in Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598 where Mason CJ, Deane and McHugh JJ said:

"It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment ..."

18 McHugh J went on in Miah at [128]:

"128 It is highly improbable that the legislature intended to exclude all the common law requirements of natural justice from subdiv AB. There are no clear words to that effect. Where Parliament has wanted to exclude common law rules from applying to the administration of the Act, it has not hesitated to do so in clear words ..."

and at [139]:

"139 The respondents argue that, because the statute establishes a mandatory duty to inform applicants about certain kinds of information, Parliament could not have intended that a similar duty should be imposed in relation to other types of information. But to so argue is to fall into the error of inferring from the presence of some matters concerned with natural justice that Parliament intended to exclude natural justice in all other respects."

19 Again his Honour footnoted this passage with a reference to Annetts v McCann. In the course of his discussion McHugh J referred to the requirements of s 57 of the Act but concluded that the statutory obligation to provide certain information did not indicate there was no common law duty to provide other information if fairness required it. On this analysis we doubt that McHugh J would have viewed the exclusion of the present appellant from the operation of s 57 as otherwise denying a common law duty of procedural fairness. His Honour’s observations appear to be directly against the first argument advanced by the Minister.

20 The third member of the majority in Miah was Kirby J. Kirby J also concluded that the relevant statutory provisions were not a code. He said at [179]):

"179 First, the Parliament did not enact, in terms, that the Minister (and thus the delegate) was under no obligation to provide information to an applicant such as the prosecutor where, otherwise, the rules of natural justice would have necessitated that course."

and at [181]:

"181 Secondly, because the obligation to conform to the rules of natural justice is so deeply entrenched in the assumptions upon which our law is based, it can normally be treated as implicit in legislation enacted by the Parliament. It would require much clearer words than exist in Subdiv AB to convince me that the provisions of the Code exhaust the applicable rules of natural justice, although not mentioned and however important such requirements might be in the particular case." (Footnote omitted.)

21 Although other reasons were also given, again it seems that the fact that, in the present case, the appellant’s application was excluded from the operation of s 57 would not have had the consequence, on Kirby J’s approach, that no common law requirement for procedural fairness arose.

22 Of course, it is not difficult to see the force in the opposing point of view. The obligations stated by s 57 may readily be seen as lesser obligations than the full rigour of the common law requirement for procedural fairness. The suggestion that Parliament intended to provide a limited version of procedural fairness with respect to some classes of applications but, at the same time, to leave those excluded from the obligation with the benefit of a higher requirement for procedural fairness, may readily be seen as contestable. However, it is not open to accept the Minister’s first argument in the light of the substance and effect of the majority judgments in Miah. Moreover, there is no necessity to decide the present appeal by reference only to the terms of s 57. The operation of s 57 should be assessed in the light of other provisions which now appear in the Act and not separately from them or divorced from their operation.

23 In the circumstances, the first argument put by the Minister should not be accepted.

24 The Minister’s second argument, and the appellant’s case on the appeal, requires consideration of the operation of s 51A and an examination of its purpose and intended application.

25 In 2002 the government introduced proposed amendments to the Act which were intended to reverse the effect of the majority judgments in Miah. The amendments proposed were those which in due course inserted ss 51A, 357A and 422B, amongst others, into the Act. As an introduction to the amendments to be made to Subdiv AB of Div 3 of Part 2 of the Act, the Explanatory Memorandum said:

"6. Subdivision AB sets out the ‘code of procedure’ for dealing fairly, efficiently and quickly with visa applications at the primary decision-making stage. It was originally intended to exhaustively replace common law natural justice requirements, other than the rule against bias, which had previously applied to visa decision-makers. ... 9. In Re MIMA; Ex parte Miah [2001] HCA 22 the High Court held, by a narrow majority, that the ‘code of procedure’ for dealing fairly, efficiently and quickly with visa applications in Subdivision AB of Division 3 of Part 2 of the Act, did not exclude common law natural justice requirements. The majority considered that such exclusion would require a clear legislative intention and that there was no such clear intention in the Act. 10. The purpose of this amendment, and the amendments in items 2 to 6, is to provide a clear legislative statement that certain ‘codes of procedure’ in the Act are an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with."

26 In his Second Reading Speech the Minister, Mr Ruddock, said the following:

"In 1998, the codes of procedure for the Migration Review Tribunal and the Refugee Review Tribunal were enhanced. The purpose of each of these codes is to enable decision makers to deal with visa applications and cancellations fairly, efficiently and quickly. It was also intended that they would replace the uncertain common law requirements of the natural justice ‘hearing rule’, in particular, which had previously applied to decision makers. However, last year in the Miah case, the High Court found that the code of procedure relating to visa applications had not clearly and explicitly excluded common law natural justice requirements. This means that, even where a decision maker has followed the code in every single respect, there could still be a breach of the common law requirements of the natural justice hearing rule. A further consequence of the High Court’s decision is that there is legal uncertainty about the procedures which decision makers are required to follow to make a lawful decision. The majority of the court emphasised that parliament’s intention to exclude natural justice must be made unmistakably clear. It concluded that this intention was not made apparent in relation to the code of procedure for dealing with visa applications. Therefore, the purpose of this bill is to make it expressly clear that particular codes in the Migration Act do exhaustively state the requirements of the natural justice or procedural fairness hearing rule. This will have the effect that common law requirements relating to the natural justice or procedural fairness hearing rule are effectively excluded, as was originally intended."

and

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

27 There is no doubt what the amendments were intended to achieve. Nevertheless, the formula used in ss 51A, 357A and 422B whereby the "exhaustive statement" was expressed to apply "in relation to the matters" which each subdivision "deals with" generated a difference of opinion within this Court. On one view, the necessity for a clear statement of the intention of the legislature to displace any common law obligation of procedural fairness had been satisfied. One such case dealt with the provisions which arise for consideration in the present appeal (Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1249; (2003) 133 FCR 221 especially at [18] – [24]). On the other view, it was held that 51A (and ss 357A and 422B) did not effectively exclude the common law requirement for procedural fairness in cases where a statutory obligation had not been clearly substituted. For example, in Moradian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1590; (2004) 142 FCR 170, a case which like Wu dealt with the provisions under consideration in the present appeal, a judge of the Court declined to follow Wu, and other cases to similar effect, and set aside a decision refusing to grant a visa after a delegate had used information not disclosed to an applicant. Like the present case, Mr Moradian was excluded from the operation of s 57. It was held that the insertion of s 51A in the Act did not exclude his common law right to procedural fairness with "sufficient certainty".

28 However, later again, in VXDC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1388; (2005) 146 FCR 562 ("VXDC") another judge of the Court made the following statement (at [30]):

"30 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. Astute readers will notice the term ‘exhaust’ is picked up from the majority judgments and included in the Statement and Speech, as well as in the amendments themselves." (Emphasis added.)

29 Finally, the matter received attention by a Full Court in Lay Lat and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 ("SZCIJ"). The Full Court was constituted identically in each case. In SZCIJ the Full Court (at [7]-[8]) referred to and adopted the analysis in Lay Lat. In Lay Lat at [61] the Full Court listed a series of cases in this Court which had dealt with the issue of construction at the heart of this appeal, including those to which we have referred. The Full Court said at [63]:

"63 We do not propose to repeat or analyse the division of opinion as to the ambit of the provisions which is revealed in those authorities. The differing views are fully set forth in the passages from the judgments to which we have referred."

30 Their Honours then said at [65] – [68]:

"65 Heerey J set out in VXDC at [23] – [25] the relevant passages from the majority judgments in Miah and the salient portions of the Explanatory Memorandum and the Second Reading Speech. The words "exhaustively state" are, as Heerey J pointed out, picked up in the Explanatory Statement from the majority judgments in Miah. We agree with the observation at [30] in VXDC that the drafters of the Explanatory Statement and the Minister could hardly have made the intention of the 2002 amendments any clearer. 66 What was intended was that Subdiv AB provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule. 67 Other aspects of the common law of natural justice, such as the bias rule are not excluded; see VXDC at [27]. 68 The intention to exclude the common law rules in the present case is especially plain when s 51A(1) is read with s 57(3). 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." (Emphasis added.)

31 Although the Minister’s first argument on the present appeal finds an echo in [68], the discussion of the effect of s 57(3) occurred in the context of the operation of s 51A(1) (as it did also in Wu). The analysis is not, therefore, contrary to the majority approach in Miah but proceeds, rather, from the identification of a clear legislative intent to reverse the effect of that approach.

32 Unless the analysis in Lay Lat, and its adoption in SZCIJ, is now overruled the Minister’s second argument must succeed and the appeal must fail.

Legislative intent

33 There is no doubt that courts are not strictly bound by statements of legislative intent. Whatever might be said by way of explanation of the intent of legislation, the ultimate duty of a court is to give effect to the terms of the statute itself. In Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 Mason CJ, Wilson and Dawson JJ said (at 518):

"The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law."

34 Similarly, McHugh J said in Miah (at [132]):

"132 ... even when a Minister, in introducing legislation, has expressed a view as to the meaning of that legislation, the court will not give the enactment that meaning if such a reading is not justified. The need to act on the text of the enactment and not the Minister’s statements is particularly important when the Minister’s meaning has serious consequences for an individual." (Footnote omitted.)

35 The appellant’s argument was that the legislative purpose intended by s 51A (and ss 357 and 422B) had not been accomplished by the terms in which it was drafted so that it was ineffective to exclude a common law requirement of procedural fairness in the present case. Reliance was placed upon a statement by McHugh J in Newcastle City Council v GIO General Limited [1997] HCA 53; (1997) 191 CLR 85 where his Honour said (at 113):

"Even if extrinsic material convincingly indicates the evil at which a section was aimed, it does not follow that the language of the section will always permit a construction that will remedy that evil."

36 However, the statement was subject to an important qualification. His Honour went on to say:

"If the target of a legislative provision is clear, the court’s duty is to ensure that it is hit rather than to record that it has been missed." (Footnote omitted.)

37 We take the authorities to be to the effect that the language of a statute is to be construed in accordance with apparent legislative intent unless such a construction is not reasonably open.

Comity and statutory construction

38 Contestable questions of statutory construction raise issues of particular difficulty. The course of events in relation to the provisions hereunder consideration is a sufficient illustration of the fact that firmly held views for both sides of an argument about a point of statutory construction may exist. French J, in Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1263; (2003) 133 FCR 190 ("Nezovic") said (at [52]):

"52 ... Judicial comity does not merely advance mutual politeness between judges of the same or co-ordinate jurisdictions. It supports the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges. Where questions of law and in particular statutory construction are concerned, the view that a judge who has taken one view of the law or a statute is ‘clearly wrong’ is not likely to be adopted having regard to the choices that so often confront the courts particularly in the area of statutory construction ..." (Emphasis added.)

39 In similar vein Weinberg J (with whom Allsop J agreed on this point) said in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 ("SZEEU") at [148]-[149]:

"148 The word ‘plainly’ does more than simply add emphasis. It suggests that the error must be manifest or, if it does not rise to that level, at least capable of being easily demonstrated. In a sense, the error must be so clear as to enable a later court to say that the point is not reasonably arguable. 149 An example of plain error would be that discussed in Bristol Aeroplane, namely that the earlier judgment was given ‘per incuriam’. However, an earlier decision may be ‘plainly wrong’, within the meaning of that expression, for other reasons as well. It goes without saying that such a finding will not be lightly made. As Allsop J correctly observes, there is a need to be ‘convinced or persuaded’ of the earlier Full Court’s error, and that can not be achieved in a case in which minds might reasonably differ as to the proper construction of a particular statutory provision." (Emphasis added.)

40 In the same case Moore J (with whom Allsop J agreed also) said at [8]:

"8 However formulated, the duty of any later Full Court to follow an earlier Full Court is founded on public policy considerations and, in particular, the need for consistency in the application of federal laws in this Court, subject always to correction of any error by the High Court or the amendment of the law by Parliament."

41 There is generally little scope, at the same level in a court’s hierarchy (at least this Court’s hierarchy), for the adoption of personal views about an issue of statutory construction at the expense of considerations of comity. The same is obviously not true when a court is constituted at a higher level than in an earlier case. Then it is not only legitimate, but desirable, that an attempt be made to declare a correct view of the law, even if that overrules or departs from views expressed in earlier cases at a lower level of authority.

Lay Lat – clearly or plainly wrong?

42 The principles of comity to which we have referred apply to the consideration by this Full Court of the issue of statutory construction raised by the appeal. However, counsel for the appellant relied upon the fact that it has been suggested that the analysis in Lay Lat was obiter dicta, wrong and need not be followed (Antipova v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 584; (2006) 151 FCR 480 at [97]). We were accordingly invited, in the present case, to reject the analysis in Lay Lat but the matter is not so straightforward for a number of reasons.

43 First, the analysis in Lay Lat may not be dismissed, or regarded as diminished in authority, on the basis that it was obiter, in light of its adoption and direct application in SZCIJ. It was binding upon the judge of this Court who decided Antipova and should have been followed. The judgment in Antipova, therefore, does not provide a reason to decline to follow Lay Lat.

44 Secondly, the course urged upon us would require, at a minimum, satisfaction that the analysis in Lay Lat was plainly or clearly wrong (see generally Cooper v Commissioner of Taxation [2004] FCA 1063; (2004) 139 FCR 205 at [46]; Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586 at [38]; BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157; (2007) 162 FCR 234 at [83]- [89]; and Bahonko v Sterjov [2007] FCA 1341; (2007) 163 FCR 318 at [8]). In the circumstances of the present case, consideration of that issue would engage the principles we referred to earlier about the importance of comity in relation to questions of statutory construction.

45 Thirdly, it would also be necessary to take into account the background against which the judgment in Lay Lat was delivered and immediately applied in SZCIJ. An appeal to the idea that courts should prefer to be ultimately correct rather than persistently wrong is alluring but, in the present case at least, it pays insufficient attention to the necessity for predictability and consistency. The judgment in Lay Lat was directed to the resolution of differing opinions amongst single judges of the Court. It would obviously be destructive of the attempt to provide that resolution to depart from it. Applying the test enunciated by Weinberg J in SZEEU, to justify the substitution of a different view to that declared in Lay Lat on the same issue of construction, particularly having regard to the judicial and legislative course of events to which we have referred, it would have been necessary for the appellant to identify a manifest error which was "so clear as to enable [the Full Court] to say that the [analysis in Lay Lat] is not reasonably arguable". The appellant’s argument cannot satisfy that standard. It would require the outright rejection as unarguable (not just incorrect) of not only the analysis in Lay Lat but the views of a number of judges as exemplified by Wu, VXDC and other cases. Plainly, the standard cannot be satisfied either simply by reference to the views of another, smaller, group of judges on the issue.

46 Finally, we do not accept that the analysis in Lay Lat (or its adoption in SZCIJ) is wrong, judged by any standard. The construction accepted in Lay Lat is not just the only approach which accommodates, rather than rejects, relevant and clear statements of legislative intent but is the only one which allows the harmonious operation of the provisions in question. In particular, the observations in Lay Lat at [68], set out earlier are unanswerable on the face of ss 51A and 57 as they now appear together in the Act (see also Wu at [23]-[24]).

Conclusion

47 The appeal must be dismissed and should be dismissed with costs.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices SPENDER, BUCHANAN AND LOGAN.

Associate:

Dated: 1 April 2009

Counsel for the Appellant:	Mr L J Karp
Solicitor for the Appellant:	Christopher Levingston & Associates
Counsel for the Respondent:	Ms L Clegg
Solicitor for the Respondent:	Sparke Helmore

Date of Hearing:	18 February 2009
Date of Judgment:	1 April 2009