In Saeed v Minister for Immigration and Citizenship [2010] HCA 23, the High Court of Australia concluded that persons who apply for visas offshore have a legitimate and enforceable expectation that adverse information discovered by the Department of Immigration and Citizenship will be communicated to them for comment before a final decision is made in their matter.
The appellant in Saeed, a citizen of Pakistan, applied for a Skilled – Independent (Migrant) Visa, Subclass 175, in November 2007, and submitted documents showing that she had been employed as a cook at a restaurant in Rawalpindi from March 2006 until November 2007.
Criteria for the grant of a Subclass 175 visa included the requirement that applicants have employment in a skilled occupation for at least 12 months in the 24-month period immediately preceding lodgement of the visa application. Another requirement was that the applicant be outside Australia at the time of grant of the visa.
Upon investigating the appellant’s claims, Australian immigration officers in Pakistan discovered that there were no employee records of the appellant at the premises of the specified restaurant. The immigration officers were further told that no female person had ever worked in the restaurant kitchen.
Consequently, the Minister’s delegate concluded that a criterion necessary for the grant of the visa was not satisfied, and rejected the visa application. The appellant was informed that her evidence of employment was considered to be false or misleading.
The Federal Magistrates Court and the Federal Court dismissed the appellant’s appeal, on the basis that section 51A(1) of the Migration Act 1958 (“the Act”) excluded the common law natural justice hearing rule and that subdivision AB of the Act in effect provided a comprehensive procedural code.
On appeal before the High Court, the majority considered that courts should not impute to the legislature an intention to interfere with fundamental rights or displace fundamental common law principles, unless clearly manifested by unmistakable and unambiguous words.
Here, the implication of the natural justice hearing rule with regard to offshore applicants remained operational; it was not overridden by provisions of the Act, which excluded visa applicants from an entitlement to be informed of adverse material, and comment on such material, before a decision was made.
Section 51A of the Act did not exclude the application of the natural justice hearing rule, or remove the right to general law natural justice for applicants outside of Australia.
The Minister’s delegate should have given the appellant an opportunity to comment on or answer information, which inferred that a necessary aspect of the appellant’s visa application was false. The majority stated: “The Minister was obliged to provide the appellant with an opportunity to answer the adverse material.”
In the result, the Court allowed the appeal and quashed the decision of the Minister’s delegate.
The case of Saeed shows that procedural fairness is to be applied in the decision-making process where offshore applicants’ rights or interests may be affected by a decision. Applicants should be given an opportunity to respond to adverse information that is credible, relevant, and significant to the decision to be made.
