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

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 214were obiter dicta – whether Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214should 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) 170 CLR 596 cited Antipova v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 480 disapproved Bahonko v Sterjov (2007) 163 FCR 318 cited BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 162 FCR 234cited Re Bolton; Ex parte Beane (1987) 162 CLR 514 cited Cooper v Commissioner of Taxation (2004) 139 FCR 205 cited Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (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) 141 FCR 586 cited Moradian v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 170 cited Newcastle City Council v GIO General Limited (1997) 191 CLR 85 cited Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (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) 150 FCR 214 followed VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562 cited Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 221 cited AMIRA SAEED v MINISTER FOR IMMIGRATION AND CITIZENSHIP