Australia: High Court Cautions Against Extrinsic Materials Overshadowing Statutory Text
Public Law Report

In a recent migration decision, Saeed v Minister for Immigration and Citizenship (2010) 267 ALR 204, the High Court reiterated that when undertaking statutory interpretation, courts should first exhaust the ordinary rules of statutory interpretation before looking to extrinsic materials. The decision reaffirms that legislative provisions that seek to exclude or codify common law natural justice
obligations must do so in "unmistakeable and unambiguous language". Finally, the decision clarifies the application of the natural justice hearing rule in relation to offshore visa applications under the Migration Act 1958 (Cth) ("Migration Act").

Background

In November 2007, the appellant, a Pakistani citizen, applied for an Australian Skilled Independent Visa. In order to satisfy the work experience requirements for the Visa, the appellant provided documentation to indicate that she had been working as a cook in a restaurant. These claims could not be verified when Australian immigration officers in Pakistan attended the restaurant and were advised that no woman had ever worked in the kitchen. On the basis of this information, the Minster's delegate refused the Visa application as she could not be satisfied that the appellant had satisfied the Visa requirements.

As the appellant was an offshore visa applicant, the delegate's decision was not subject to review by the Migration Review Tribunal and the appellant therefore sought judicial review in the Federal Magistrates Court and then appealed to the Full Federal Court. The appellant sought to argue that the delegate failed to afford her what was required under the natural justice hearing rule in relation to the adverse information obtained by the immigration officers.

Stressing the importance of judicial comity in relation to questions of statutory construction, the Full Federal Court dismissed the appellant's appeal, following a decision in which an earlier Full Court held that the intention of the relevant provisions of the Migration Act was to exclude common law natural justice for offshore visa applicants such as the appellant, and confer limited statutory natural justice protections for onshore visa applicants (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214).

Decision

The appellant obtained special leave to appeal to the High Court. The majority (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) found in favour of the appellant and allowed the appeal. Justice Heydon also agreed with the orders of the majority. As a result, the decision of the delegate was quashed and the appellant was granted a right to have her Visa application re-determined according to law.

In reaching its decision, the High Court applied the ordinary principles of statutory interpretation to determine whether the relevant provisions of the Migration Act acted as an exhaustive statement of the natural justice hearing rule. In the High Court's view, the questions raised on the appeal could be answered by having regard to the words used in the statute alone. A close reading of the statutory text revealed a lacuna in the application of the relevant provisions to offshore applicants such that common law natural justice obligations were not excluded. Accordingly, the delegate was obliged to provide the appellant with an opportunity to respond to the adverse information before determining her Visa application.

The High Court emphasised that ordinary principles of statutory interpretation should be exhausted prior to any consideration of extrinsic material. Therefore, whilst the Explanatory Memorandum and Second Reading Speech of the Minister indicated a clear and unmistakeable intention to exclude the application of the common law natural justice hearing rule, this did not overcome the need to carefully consider the words of the statute to ascertain its meaning.

Implications

This case is a reminder that courts must apply the ordinary rules of statutory interpretation before resorting to extrinsic materials. Notwithstanding contrary statements as to legislative intention discernable from extrinsic materials, the High Court relied upon the construction of the actual text of the statutory provision to determine its true meaning. The decision is an important reminder that legislative drafters must ensure that the words of a statute clearly convey the intention of Parliament, rather than leaving this to the extrinsic materials. It also highlights that where Parliament attempts to exclude or restrict common law natural justice it must do so with "irresistible clearness".

The decision has potential implications for the operation of almost identical provisions in the Migration Act concerning the conduct of reviews by the Migration Review Tribunal and the Refugee Review Tribunal. It is likely that where procedural matters arise that are not directly dealt with in these provisions, common law natural justice obligations will apply.

Finally, as the High Court has ruled that the more restrictive natural justice hearing rule codified in the Migration Act does not apply to offshore visa applicants, they may need to be afforded the full panoply of common law natural justice unless and until the Parliament makes further amendments to the Act.

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