FEDERAL COURT OF AUSTRALIA

NAAT v Minister for Immigration & Multicultural Affairs [2002] FCA 332

MIGRATION – Phillipino citizen claims to fear persecution by reason of her views concerning unions – whether the RRT addressed the correct issue – whether the RRT was bound to ask the applicant further questions – whether the RRT denied the applicant procedural fairness by failing to warn her that her answers did not seem to make out her case.

Constitution, s 75(v)

Convention relating to the Status of Refugees, art 1A(2)

Judiciary Act, s 39B

Migration Act 1958 (Cth) ss 414, 420(2)(b), 474

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, cited.

Walton v Ruddock [2001] FCA 1839, cited.

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238, cited.

Re Refugee Review Tribunal; Ex parte HB (2001) 179 ALR 513, cited.

Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 167, cited.

Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, cited.

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, cited.

Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411, cited.

Powley v Crimes Compensation Tribunal (1996) 11 VAR 146, cited.

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, followed.

Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38, distinguished.

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28, distinguished.

Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184, cited.

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802, distinguished.

Luu v Renevier (1989) 91 ALR 39, distinguished.

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, distinguished.

Kola v Minister for Immigration and Multicultural Affairs [2002] FCA 265, cited.

Abebe v The Commonwealth (1999) 197 CLR 510, cited.

NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263, cited.

NAAT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1454 of 2001

SACKVILLE J

SYDNEY

27 MARCH 2002

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the Minister’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

the proceedings

1                     By an amended application filed in Court, the applicant seeks orders pursuant to s 39B(1) of the Judiciary Act 1903 (Cth) (“Judiciary Act”) in relation to a decision made by the Refugee Review Tribunal (“RRT”) on 2 October 2001.  The RRT affirmed a decision of a delegate of the respondent (“the Minister”) refusing to grant the applicant a protection visa.  The relief sought by the applicant includes an order setting aside the RRT’s decision and a writ of prohibition preventing the Minister from taking any steps to give effect to the decision.

2                     The proceedings in this Court were commenced on 25 October 2001.  This being so, it was common ground that the proceedings were governed by Part 8 of the Migration Act 1958 (Cth), as inserted by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), which came into force on 2 October 2002  The key provision in Part 8 in its current form is s 474 of the Migration Act.  It provides, relevantly, as follows:

“(1)     A privative clause decision:

(a)               is final and conclusive; and

(b)               must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)                is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

(2)               In this section:

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not)…”.

3                     Since reference was made in argument to s 75(v) of the Constitution, it is convenient to set out its terms here:

“75.     In all matters:

            …

(v)               in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

the High Court shall have original jurisdiction.”

Section 39B(1) of the Judiciary Act grants jurisdiction to the Federal Court with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.  This provision mirrors the language of s 75(v) of the Constitution.

background

4                     The applicant is a citizen of the Philippines, born in 1967.  She arrived in Australia on 31 December 2000 and gained admission as the holder of a tourist visa.  On 9 February 2001, she lodged an application for a protection visa.  The Minister’s delegate refused her application on 4 April 2001 and the RRT subsequently affirmed the delegate’s decision.

the applicant’s claims

5                     The applicant set out her claims in her application for a protection visa as follows:

“I left the Philippines because my life was in danger from employees and former employees of the company I was working.  I was a restaurant manager which has about 20 to 25 employees.  As restaurant manager, I have the very sensitive function of hiring and firing employees.  Union members have talked to our company’s employees to form a union and I was assigned by management to discourage forming union and instead employees have individual contract with the company. I myself was against the organizing of a union because it is only a small company and I knew the harm it will do to our company.  With this, the employees accused me of bias, discrimination, injustice, unfairness and narrow mindedness.  I even received threats by phone calls on the job and at home.  Recently, the threat to  my life and person even became more real as a result of my dismissal of 3 employees who were fired because of stealing the company’s cash sales for the day.  These three employees were all union members to another company and they just transfer to our company to encourage our employees to form a union.  These dismissed employees often followed me around and is always turning up at our workplace.  I would not have feared for my life as much were it not for the fact that these employees will not stop threatening unless union is established in our company.  I fear that I will be harmed if I go back to the Philippines.  I think that the employees and former employees of our company will harm me if I go back to the Philippines.  I do not think that the authorities can effectively protect me from our company’s employees or former employees who are angry at me because I did not sympathize with their idea of forming a union.”

The application form records that the applicant nominated a migration agent (a solicitor) to act on her behalf in relation to the application.

the delegate’s decision

6                     The delegate, in his decision record, noted that the applicant’s claim, in summary, was that “she has been subjected to death threats by unionists disgruntled by her anti-union stance”.  The delegate said this:

“Given that employees have the right to form and join trade unions, and seek review of unfair labour practices, I find it difficult to accept that the applicant’s staff would seriously violate her human rights to resolve an industrial dispute.  Nevertheless, for the purposes of this assessment, I accept that the applicant has been subjected to threats and has a subjective fear that the threats will be carried out.”

7                     It will be seen that the delegate did not make a positive finding that the applicant’s account was credible and should be accepted (as some of the applicant’s submissions in this Court rather suggested).  Instead, the delegate expressed reservations about aspects of her account but accepted “for the purposes of this assessment” that she had been subjected to threats and had a subjective fear that the threats would be carried out.

8                     On this basis, the delegate rejected the application.  He found that there was no evidence to suggest that the authorities in the Philippines would be unable or unwilling to protect her if she continued to receive death threats.  Any such threats were a matter for the police to investigate.  He also found that the applicant could avoid further harassment by relocating to another part of the Philippines, bearing in mind her work experience, age and ability to speak both Tagalog and English.  Accordingly, the delegate concluded that the applicant did not have a well-founded fear of persecution for any of the reasons identified in the Convention relating to the Status of Refugees (the “Convention”).

the rrt proceedings

9                     The application for review lodged with the RRT identified the applicant’s reasons for making the application as disagreement with the findings and conclusion of the decision-maker.  The application recorded, however, that the migration agent previously nominated was authorised to act for her in relation to the application.

10                  The RRT held a hearing on 20 August 2001, the transcript of which was in evidence.  The applicant appeared at the hearing unrepresented and did not file any written submissions.  The proceedings were not translated and the applicant, who has tertiary qualifications gained in the Philippines, gave her evidence in English.  No suggestion has been made that she did not understand what the RRT said or put to her.

11                  The transcript records that the RRT member explained to the applicant that the review involved a fresh consideration of her application and that the hearing was the final part of the review process.  The member also explained that the RRT’s function was to determine whether the applicant was a refugee in accordance with the definition in Art 1A(2) of the Convention.  The member further explained the terms of the definition in a manner that has attracted no criticism in this Court.  The member stated that the applicant would have the opportunity at the end of the proceedings to make any comments she wished the RRT to consider.

12                  Counsel referred to a number of passages in the transcript, which occupies only ten pages in all.  The most important passages for present purposes are these:

“RRT:              Why did you leave to come to Australia?

Applicant:       Um, because I am afraid, because…I have a threat because the…I terminated three employees and then…because they want to…they…I terminated them because um they did something wrong and…they wanted to form a union in a restaurant and they are trying to tell everyone to join and, since I’m the manager there, I have the duty to protect the company and I am also against union.  That’s why I…because I am afraid that, ah, that they will do something frightened about me…to me…that’s why I ah, I, I went here to Australia.

                        …

RRT                 Why were you opposed to employees forming a union?

Applicant:       Ah, because um I know the disadvantages of forming a union and my company is only a small company and…since I am in the management side so that’s…I decide to…I decided to try to…not to form a union…I decided to talk to them not to form a union.  But they know they won’t agree with that.

                        …

RRT:                So the disadvantages in a union is that you think the Manager told you if the employees form a union he would shut the restaurant, is that correct?

Applicant:       Yes.

RRT:               Ok.  What threats did you receive?

Applicant:      Um, they called me at home and um, also in the ah, in my workplace and so my parents are very, very afraid because they are already old and…

RRT:               What type of threats do they…

Applicant:      They are calling me and saying something will happen to  you, something like that…and then I will see them walking along and I will see them and I am getting paranoid about that.

                        …

RRT:               So what do you feel would happen to you if you returned to Philippines?

Applicant:      I think they would get back at me.

RRT:               Who? Who will get back at me.

Applicant:      Ah, the persons who I terminated.

RRT:                How will they know you have returned?

                        …

Applicant:       Ah, they will see me…because they have so many friends.

RRT:                Did you consider changing your employment?

Applicant:       Um, no because if I am going to other places, I have don’t know anyone…because all my family are in Manila, so…so I don’t want to be left alone all by myself.

RRT:                What about changing your employment in Manila, it’s a very big city.

Applicant:       Yes, but they are going to see me.

RRT:                In Manila?

Applicant:       Yes.

RRT:                How will they see you, if you are going to another part of Manila?

Applicant:       It is a big city…they can easily find where I am working or something like that.

RRT:                Where…how would they do that?

Applicant:       Um, because they are so angry with me…so angry at me…they will do anything.

RRT:                Now, the instruction to terminate their employment, did that come from your manager, from the owner of the restaurant?

Applicant:       Yes.

RRT:               Have they done anything to the manager, the owner of the restaurant?

Applicant:      Um…I don’t think so.

RRT:                Why wouldn’t they be angry with the owner, I mean it is the owner’s decision, you are only carrying out instructions from the…

Applicant:       I was the one who was talking to them and ah…I am, ah directly in contact with them…and the owner would just drop by and then go.

RRT:                Now, under the Convention you are…the persecution has to be because of a race, religion, nationality, membership of a particular social group, or political opinion.  I am finding it difficult putting you in to that category of Convention….

Applicant:       OK.

RRT:                Because you are a national of the Philippines, it’s not because obviously of your race or religion and you’re not a member of a particular social group or of a political opinion.  And it has to be for these particular reasons that you…I mean I’m not…I find it difficult to accept that you couldn’t move to another restaurant in the Philippines without them knowing – it is a big city.

Applicant:       Yeah, it is a big city but they still…they know where I live.

RRT:                And I am finding it difficult to accept they wouldn’t target the owner of the restaurant – you’re just carrying out instructions, you’re not an owner, you’re just an employee as well.

                        …

RRT:                I really find it difficult to accept that they would find you in Manila.  It is a big city and I find it very very difficult that they would find you there.  And I also have to consider, and this is what I must consider carefully, as to whether it is for your race, your religion, membership of a particular social group, political opinion or religion, and the constitution and the laws provide for the right of the workers to join trade unions, so really the instruction has come from the owner, it’s not your opinion, it’s his…the owner’s opinion.

Applicant:       Yeah, but um…I am the one who had the [inaudible] influence and the one who talked to them about that.

RRT:                Sure.  Um…Is there anything else you would like me to consider.

Applicant:       No, nothing.

RRT:                Ok. The definition of a refugee is that they have to appeal to the mercy of the international community for protection and I have difficulty accepting that you fit into that category…I feel that perhaps you could consider working in Manila but maybe at a different restaurant.  And you are well educated, you have a science degree in restaurant and hospitality and you have held a position for 10 years which indicates that you’re obviously very well respected in the industry.  So anything else you would like me to consider?

Applicant:       Ah, no.

RRT:                Um, [inaudible] have no comments or anything else you like the Tribunal to consider?

Applicant:       No.”  (Emphasis added.)

the rrt’s reasons

13                  The RRT’s reasons were brief.  After referring to the legislation and the interpretation of the Convention definition of “refugee”, the RRT extracted the applicant’s claims as stated in her protection visa application.  The RRT then summarised the evidence given by the applicant at the hearing. 

14                  Under the heading “Findings and Reasons” the RRT said this:

 “I am not satisfied that the applicant’s fear of harm is for a Convention nexus.  The Tribunal does not accept that a Convention related motive can be imputed to the applicant’s fear of being targeted because she dismissed three employees who had done something wrong.

The applicant’s difficulties arise because she dismissed three employees from the restaurant where she was manager because they were stealing money.  The Tribunal finds on the applicant’s own evidence that there is nothing which suggests that the former employees threats to the applicant are because of reasons of her race, religion, nationality, membership of a particular social group or political opinion.  The motivation behind the threats by the former employees to the applicant is because they bear a grudge because she dismissed them for doing something wrong.  The applicant did not mention at the hearing that she expected threats from disgruntled employees whom she did not support in their wanting to form a union.  The Tribunal is satisfied that the threats directed at the applicant are from the three employees because she dismissed them for stealing money and not because she did not support the employees forming a union, as the employees who wanted to join a union were not dismissed for that reason.

The mere fact that the employees were dismissed for doing something wrong is not sufficient to ground the applicant’s claims in the Convention – the persecution must be for one or more of the five Convention reasons held or imputed to the applicant by the persecutors.  In this case, it appears plainly from the evidence that the motives of the dismissed are not for any Convention related motive which they may have imputed to the applicant.  Her fear may best be characterised as arising from threats made against her from three disgruntled employees who she had dismissed.  The Tribunal is satisfied that the motiving factors behind the harm the applicant fears is not for a Convention reason.  The Tribunal is not satisfied that, on return to the Philippines, that the applicant will be harmed for a Convention reason in the reasonably foreseeable future.”

15                  For these reasons the RRT was not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention.  She therefore did not satisfy the criterion set out in s 36(2) of the Migration Act for the grant of a protection visa, namely that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention.

the submissions

16                  Mr McCarthy QC, who appeared with Mr Wilson for the applicant, argued that the RRT had acted in excess of its jurisdiction.  The applicant’s case was put in several ways, although the contentions overlapped to some extent.

17                  First, the applicant submitted that the RRT had breached the rules of natural justice, or its duty to inquire into the applicant’s case, in two respects.

·        The RRT was bound to inquire into the reasons behind the making of the threats in order to determine the applicant’s claim properly.  In particular, the RRT was bound to inquire, or inquire further, as to what was actually said by those making threats to the applicant.  According to Mr McCarthy, the RRT was obliged to act as an “inquisitor” and thus it was bound to explore the applicant’s claim that she had received threats associated with the employees’ or former employees’ desire to form a union at the applicant’s workplace.

·        Mr McCarthy also argued that the RRT was obliged, as a matter of procedural fairness, to advise or warn the applicant that it was considering rejecting her claim on the ground that the threats she had received were motivated simply by a grudge on the part of the dismissed employees and had nothing to do with any political opinion that might have been imputed to her.  The failure to warn the applicant, so it was argued, deprived her of the opportunity to amplify her evidence and identify more precisely the threats that had been made against her.  Mr McCarthy argued that the obligation arose, or at least was supported, by the fact that the applicant was unrepresented at the hearing and that the approach ultimately taken by the RRT was different from that taken by the delegate.

18                  Secondly, the applicant submitted that the RRT should have assessed the applicant’s claims on the basis that it may have been mistaken in its finding that the threats had been made simply by reason of the grudges borne by the three dismissed employees (that is, in the language used in some of the authorities the RRT had to ask itself “What if I am wrong?”).  Mr McCarthy supported this submission by contending that there was insufficient material to support the RRT’s finding.  While the applicant did not seem to attack the RRT’s decision on the ground that its finding was unsupported by any evidence (the grounds of review did not identify that as a discrete ground), the absence of evidence was said to make it impossible for the RRT to have reached the conclusion it did with any degree of confidence.

19                  Thirdly, the applicant argued that the RRT had misdirected itself.  Mr McCarthy acknowledged that the RRT had made a finding that the applicant’s opposition to the unionisation of her workplace had played no part in the threats made by the three former employees.  But, so it was argued, the RRT’s determination that the dismissal of the employees had severed any causal connection between the applicant’s opposition to the union and the motivation for the threats demonstrated that the RRT had failed to apply itself to the critical question, namely whether those threatening the applicant were motivated, at least in part, by her opposition to the union.  It had therefore failed to perform its statutory duty under s 414 of the Migration Act, which requires the RRT to “review” the delegate’s decision.

20                  The applicant’s written submissions did not address the effect of s 474 of the Migration Act.  The Minister’s written submissions, however, pointed out that s 474(1) is in substantially the same form as the privative clause considered in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598.  Dixon J in Hickman had summarised the effect of such clauses as follows (at 614-615):

“The particular regulation is expressed in a manner that has grown familiar.  Both under Commonwealth law, and in jurisdictions where there is a unitary Constitution, the interpretation of provisions of the general nature of [the privative clause] is well established.  They are not interpreted as meaning to set at large the courts or other judicial bodies to whose decision they relate.  Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.”

21                  According to Mr Lloyd, who appeared for the Minister, the effect of a privative clause in the form of s 474(1) of the Migration Act is not to oust the jurisdiction of the Courts to review migration decisions (an approach which might fall foul of s 75(v) of the Constitution).  Rather, s 474(1) broadens the lawful authority of the decision-maker (in this case the RRT) so that its jurisdiction is constrained only by the three “Hickman conditions”, viz

·        the decision-maker is required to have made a bona fide attempt to exercise its power;

·        the decision relates to the subject matter of the legislation; and

·        the decision is reasonably capable of reference to the power given by the decision-maker.

22                  Mr Lloyd submitted that the applicant’s case had to fail as there had been no attempt to establish on her behalf non-compliance with any of the Hickman conditions.  Rather, the applicant’s case had simply assumed that this Court has jurisdiction under s 39B of the Judiciary Act to entertain applications for relief where the RRT has committed jurisdictional error.  According to Mr Lloyd, that assumption was wrong.

23                  Mr McCarthy addressed the effect of the privative clause in his oral submissions.  In essence, he adopted, without elaboration, an argument referred to by Merkel J in Walton v Ruddock [2001] FCA 1839.  In that case, Merkel J did not find it necessary to resolve the question of whether s 474(1) of the Migration Act operates to prevent judicial review of decisions made in breach of the rules of natural justice, a point he regarded as “not altogether clear” (at [36]).  Merkel J pointed out that there have been statements in the High Court suggesting that, if the rules of natural justice have not been excluded by statute, Parliament cannot validly exclude the jurisdiction of the High Court to grant relief under s 75(v) of the Constitution in respect of the breach: see, for example, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238, at 261, per Gaudron J; Re Refugee Review Tribunal; Ex parte HB (2001) 179 ALR 513, at 515-516, per Kirby J.  His Honour considered that, since Part 8 of the Migration Act was silent on the question of compliance or non-compliance with the rules of natural justice, there might be obstacles in the path of an argument that the section provides a clear legislative intention to abrogate or exclude the rules of natural justice. There were therefore “grounds for contending that s 474 does not prevent the review of decisions in respect of visas on that ground”: at [37].  Mr McCarthy adopted the argument Merkel J indicated might be well-founded.

24                  Merkel J in Walton v Ruddock also thought an issue might arise as to whether an invalid decision purportedly made under an enactment is a decision made “under” the enactment, within the meaning of provisions such as s 474(2) of the Migration Act.  His Honour regarded this as ultimately a matter of construction: at [41]; cf Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 167, at [30] (where Mansfield J rejected the view that a decision made “under” the Migration Act does not include a purported decision).  Again, Mr McCarthy adopted the argument that Merkel J thought might be available.

25                  In response to the applicant’s submissions on the substance of the application for judicial review, Mr Lloyd submitted that, even if the Court retained jurisdiction and power to grant relief in respect of any jurisdictional error committed by the RRT, none had been demonstrated in the present case.  The RRT was under no duty to inquire further than the claims made by the applicant.  In any event, even if there was a duty on the RRT to inquire further in some circumstances, the RRT had not breached that duty since it had asked the questions on the significant issues.  The RRT had considered the applicant’s claim and made findings adverse to her.  There was no obligation on the RRT to tell the applicant that it was contemplating finding against her on the ground that her own evidence did not satisfy it that she had a well-founded fear of persecution on a Convention ground.  Nor was there anything in the RRT’s reasons to attract the so-called “what if I am wrong” principle.

the evidence

26                  At the outset of the hearing, Mr McCarthy sought to read an affidavit by the applicant.  In this affidavit the applicant recounts in some detail the nature of the threats she claims were made against her in the Philippines.  More specifically, she claims that some of the threats by the three dismissed employees suggested that she would be killed unless a union was formed at her workplace.  She had not given this evidence before the RRT; nor had she made claims in these terms in her written application for a protection visa.

27                  It is important to note what is not in the affidavit.  The applicant does not suggest that she misunderstood the RRT’s questions or explanations, nor that she felt inhibited in any way in responding to the questions or in making submissions to the RRT.  She does not provide any explanation for failing to present the material in the affidavit to the RRT when she had the opportunity to do so.  And she does not suggest that she was misled by anything the RRT member said in the course of the hearing: cf Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, at 114, per Gaudron and Gummow JJ.

28                  Mr McCarthy ultimately accepted that the affidavit was not relevant to whether the applicant had made out a ground of review identified in the amended application.  He pressed the affidavit on one basis only, namely that it identified evidence that the applicant would wish to give if the matter were to be remitted to the RRT.  I admitted the affidavit on that basis: that is, as relevant only to such discretion as the Court might have to grant or withhold relief should the applicant establish grounds for the relief sought in the application.

reasoning

29                  I shall consider first the applicant’s claim that the RRT committed jurisdictional errors.  It is only if the applicant establishes jurisdictional error that the question of the construction and effect of s 474 of the Migration Act arises. 

did the rrt address the correct issue?

30                  It is convenient to deal first with the applicant’s submission that the RRT failed in its duty under s 414 of the Migration Act to review the delegate’s decision, by reason of a failure to address the correct question.  This submission, as I understood it, turned on the proposition that the RRT had not appreciated the nature of the case the applicant was advancing. 

31                  The applicant’s case, at least on a generous reading of her written application, was that she was being threatened by employees or former employees at her workplace who were disgruntled by her unsympathetic attitude towards the formation of a union at the workplace.  The RRT was, of course, aware of the written claims made by the applicant, since it quoted them in full in its reasons.

32                  It is true that the RRT’s reasoning is stated very briefly.  Nonetheless, the RRT found that the only persons whom the applicant feared were the three dismissed employees.  It also specifically found that those employees made the threats directed at the applicant because she had dismissed them for wrongdoing, and not because of her attitude towards the formation of a union at the restaurant.  This finding was clearly made in response to what the RRT understood to be the applicant’s claim, namely that the three dismissed employees had made threats linked to her opposition to the formation of a union.  In other words, the RRT appreciated that the applicant claimed that the threats by the dismissed employees had been motivated by political opinion imputed to her.  The RRT also pointed out that the applicant had not mentioned at the hearing that she expected to receive threats from disgruntled employees whose desire to form a union she had not supported.  There was no point in the RRT making these observations unless it appreciated that the applicant had claimed that threats had been made against her by persons other than the three dismissed employees and that these threats had been motivated, at least in part, by her opposition to the formation of a union.  The RRT rejected this claim because of the applicant’s own evidence that the persons she feared were the three dismissed employees.

33                  In these circumstances, I do not think that it can be said that the RRT failed to appreciate the nature of the case the applicant was seeking to advance.  In particular, it addressed itself to the reasons why threats had been made against her.  It follows that the RRT did address the contentions raised by the applicant and did not misconceive the nature of its duty: cf Ex parte Miah at 256-257, per Gaudron J (dissenting on this issue).  Accordingly, the submission that it failed in its duty to review the delegate’s decision must be rejected.

was there evidence to support the rrt’s findings?

34                  Mr McCarthy, as I understood him, did not advance a separate contention that the RRT’s decision was liable to be set aside on the ground that there was no evidence to support it.  Indeed, he did not refer to the authorities that limit the scope of the so-called “no evidence” ground as a basis for concluding that a decision-maker has committed an error of law: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, at 356, per Mason CJ (with whom Brennan, Toohey and Gaudron JJ agreed); Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411, at 421-422, per curiam.  Nonetheless, Mr McCarthy suggested in argument that it had not been open to the RRT to make the findings it did.  While it seems that this suggestion was made in order to support other arguments on which the applicant relied, I should explain why, in my opinion, it was open to the RRT to make the findings criticised in the applicant’s submissions.

35                  At the hearing, the RRT asked the applicant why she had left the Philippines to come to Australia.  She responded by suggesting that she was afraid for her safety because of threats made by the three employees whose employment she had terminated.  Her response to the RRT’s question is not easy to follow but, as Mr McCarthy seemed to accept, it is difficult to understand the response as asserting that the three former employees had made threats specifically referring to the applicant’s opposition to the formation of the union or to the absence of a union at her place of work. 

36                  The RRT subsequently returned to the nature of the threats and specifically asked the applicant what threats she had received.  Again the applicant’s response did not suggest that the threats were in such terms as to cause her to believe that they had been made because she opposed the formation of a union.  Later, the RRT asked the applicant what would happen to her if she returned to the Philippines.  Her answer was that the persons whose employment she had terminated would get back at her.  She made no mention of fearing harm from other employees or former employees.

37                  The RRT’s reasoning, although expressed briefly, seems to me to be tolerably clear.  The RRT thought it significant that the applicant had not mentioned in her oral evidence that she expected threats from disgruntled employees who might have resisted her unsympathetic stance towards the formation of a union.  Indeed, without being prompted to do so by a leading question, she expressly confined her fears to harm at the hands of the three dismissed employees.  The RRT also considered it significant that the applicant failed to mention, despite having a clear opportunity to do so, that the three dismissed employees made threats couched in terms of her opposition to a union or tied to the formation of a union at the restaurant.  Moreover, as Mr Lloyd pointed out, the RRT’s reference to the applicant’s “own evidence” indicates that it took into account her statement that the three dismissed employees had targeted her but not her employer (whose opinion on the role of a union in the workplace was ultimately determinative).  It was the applicant’s evidence as a whole (including her failure to answer questions in a way that supported her claims) that led the RRT to infer that the three dismissed employees made threats against the applicant because they bore a grudge against her for dismissing them for misconduct.  In this sense, the inference drawn by the RRT was based on the applicant’s “own evidence”.

38                  The RRT’s reasons might perhaps be criticised for being expressed too cryptically.  It perhaps could also be said that other decision-makers might have been less willing to infer that any threats made to the applicant were motivated purely by personal grudges held by those making the threats.  But there was material before the RRT from which it was entitled to infer that any fears which the applicant had derived from threats made for non-Convention reasons.  Specifically there was material from which the RRT was entitled to infer that the applicant feared harm only from persons motivated solely by personal antipathy towards her, arising from her actions in dismissing them for misconduct.  It cannot be said that the RRT’s findings were made irrationally or arbitrarily (cf Powley v Crimes Compensation Tribunal (1996) 11 VAR 146, at 156-157, per Phillips JA, cited in Minister v Epeabaka, at 421-422), or without any evidentiary foundation.  It follows that to the extent that Mr McCarthy submitted that there was no evidence to support the RRT’s decision, the submission cannot be upheld.

the “what if I am wrong?” argument

39                  The applicant, in her written submissions in this Court, argued that the RRT had failed to take into account the possibility that its findings, that the threats by the three dismissed employees were motivated purely by personal grudges and not by reason of any imputed political opinion, were wrong.  In part this argument appeared to be founded on the proposition that the RRT, on the material before it, could not have confidently made a finding that the threats were motivated for reasons other than the applicant’s anti-union views.  Such an approach is not open: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, at 240-241, per Sackville J (with whom North J agreed).  In any event, for reasons that have been explained, the evidence before the RRT was sufficient to allow it to draw the inference it did.

40                  As stated in Rajalingam (at 241), there is no occasion for the RRT to consider the possibility that its factual findings may have been wrong if a fair reading of its reasons shows that the RRT had “no real doubt” about its finding.  In the present case, the RRT’s reasons show that it had no real doubt about the critical finding.  It said that the evidence showed “plainly” that the three dismissed employees had not made the threats for any Convention-related motive.  In context, that could only have referred to the RRT’s finding that the motivation behind the threats was because the employees bore a grudge against her because she dismissed them for wrongdoing.  The “what if I am wrong?” argument must therefore be rejected.

the “failure to inquire” argument

41                  The applicant’s submission that the RRT was bound to inquire further into the reasons behind the making of the threats relied heavily on my own decision in Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38.  In Saliba, I held that, where the facts found by the RRT gave rise to an arguable claim that the applicant feared persecution for a particular Convention reason, the RRT erred by failing to address that claim.  This was so, notwithstanding that the unrepresented applicant had not adverted expressly to the legal argument supporting the claim.  I said (at 50) that the obligation on the RRT received support from s 420(2)(b) of the Migration Act, which requires the RRT to act in accordance with substantial justice and the merits of the case.

42                  In Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28, Merkel J expressed the relevant principle this way (at 63):

“The RRT is not to limit its determination to the ‘case’ articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant”.

His Honour grounded the RRT’s duty in the “nature of the inquisitorial process”, in particular the obligation of the RRT, acting inquisitorially to review the decision according to the “merits of the case”.  See also Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184, at 196, per Merkel J (with whom Heerey and Sundberg JJ agreed) and cases cited there.

43                  There are clear differences between cases such as Saliba and Paramananthan and the present case.  The principle applied or discussed in those cases concerned the obligation of the RRT to consider an argument that an applicant is entitled to the protection of the Convention where the facts found by it, or at least not negated by its findings, might support the argument.  This is so notwithstanding that the applicant has not articulated the legal basis for the claim to come within the Convention definition of “refugee” arising from the facts found by the RRT or from factual claims which it does not reject.  In this case, by contrast, the findings by the RRT were inconsistent with any claim by the applicant to fear persecution in the Philippines for a Convention reason.  In other words, the RRT made findings undercutting the only basis on which the applicant had claimed, so far as her evidence showed, could claim to come within the Convention definition of “refugee”.  There is nothing in the cases such as Saliba or Paramananthan to suggest that the RRT is obliged, whether by reason of s 420(2)(b) of the Migration Act or otherwise, to make further inquiries where, on its findings, the applicant cannot be said to be a person to whom Australia has protection obligations under the Convention.

44                  The applicant also referred briefly to the decision of the Full Court in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802.  There the RRT failed to address a critical claim advanced by the applicant.  Allsop J, with whom Spender J agreed, held (at [42]) that

[t]o make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on”.

In the present case, the RRT addressed the applicant’s claims but concluded, on the facts found by it, that she did not have a well-founded fear of persecution in the Philippines for a Convention reason.  The reasoning in Htun does not apply to the circumstances of this case.

45                  Another line of authority to which reference was made very briefly in argument is represented by cases such as Luu v Renevier (1989) 91 ALR 39, at 50, per curiam.  There it was held, following Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, at 170, per Wilcox J, that a decision might be unreasonably made –

“where, to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination and which has not been obtained.”

As was pointed out in Kola v Minister for Immigration and Multicultural Affairs [2002] FCA 265, at [67], per curiam, this reasoning has its origins and justifications in the concept of Wednesbury unreasonableness.

46                  In my opinion, this line of authority also does not apply to the present case.  It cannot be said that the RRT had knowledge that other factual material was readily available which was likely to be of critical importance in relation to a central issue for determination.  The applicant’s real complaint is that there was other material she could have put to the RRT which might have persuaded it to take a different view of the facts. 

47                  Thus far I have approached the applicant’s “failure to inquire” submission by reference to the authorities.  There is a factual difficulty facing the submission.  Mr McCarthy argued that the RRT was bound to inquire into the motivation for the threats by asking the applicant

“what was said by these men when they threatened you?”

But the RRT did ask the applicant what threats she received and what types of threats they were.  The RRT can hardly be obliged to repeat questions or to rephrase questions simply because the applicant’s answer does not advance her case.  As I have noted, no suggestion has been made that the applicant was inhibited in answering the RRT’s questions, misunderstood them or was mislead.

the procedural fairness argument

48                  A denial of procedural fairness by the RRT may result in a decision made in excess of jurisdiction in respect of which a writ of prohibition will lie: Ex parte Aala, at 91, per Gaudron and Gummow JJ (with whom Gleeson CJ agreed); at 135, per Kirby J; at 143, per Hayne J.  The High Court has held that the Migration Act at least in the form it took prior to the 2001 amendments, did not contain a comprehensive procedural code such as to exclude the common law rules of procedural fairness: Ex parte Miah, at 260, per Gaudron J; at 270, per McHugh J; at 282, per Kirby J.

49                  The content of the obligation to accord procedural fairness turns on the circumstances of the particular case: Ex parte Aala, at 91-92.  In this case, the applicant’s argument is that the RRT should have warned her that it was considering rejecting her claim on the ground that any threats received by her had not been motivated by a Convention reason.

50                  It is important to bear in mind that this is not a case where the RRT acted on information or material adverse to the applicant of which she was unaware: cf Ex parte Miah, where the denial of procedural fairness consisted of the RRT’s failure to advise Mr Miah that it proposed to decide against his application because of political changes that had occurred in Bangladesh after the application had been lodged.  Nor is it one where the applicant claims that she was misled by what the RRT told her and was thus denied an opportunity of correcting an erroneous and unfavourable factual assumption made by the RRT: cf Ex parte Aala, at 89, per Gaudron and Gummow JJ.  It is not even said that the applicant was inhibited in some way from answering the RRT’s questions fully.

51                  Mr McCarthy did suggest, if I understood correctly, that the applicant may have misunderstood the issues she had to confront because the delegate had accepted her account of events as credible, but decided against her on the ground that the applicant would receive protection from the authorities in the Philippines and, in any event, could relocate to another part of the country.  There are two answers to this contention.  First, the applicant has offered no evidence that she misunderstood the issues before the RRT.  Secondly, the submission does not accurately reflect the delegate’s reasoning.  As I have explained, the delegate expressed reservations about aspects of the applicant’s account, but accepted for the purposes of his assessment that she had been subjected to threats and had a subjective fear that the threats would be carried out.  The delegate did not make an affirmative finding that the applicant’s account should be accepted in full.

52                  The applicant’s case ultimately came down to the proposition that the RRT should have told the applicant that her answers were not sufficient to make out a case that she feared persecution by reason of imputed political opinion.  The RRT member did in fact tell the applicant that he was having difficulty putting her claim within one of the Convention categories, including that of a person who fears persecution by reason of his or her political opinion.  But even if that was not a sufficient warning that her evidence was insufficient to make out a case, it is difficult to see why the RRT was bound to go further.  In Abebe v The Commonwealth (1999) 197 CLR 510, Gummow and Hayne JJ said this (at 576):

“The want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue.  Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant.  Such assumptions, if made, would be wrong.  The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor.  It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason.  The Tribunal must then decide whether that claim is made out.” (Emphasis added.)

See also Ex parte Aala, at 115, per Gaudron and Gummow JJ.

53                  The RRT asked the applicant about the nature of the threats she had received and the nature of the fears she held.  She had the opportunity, both in writing and in her oral evidence to specify what those threats were and, in particular, to state (if it was the case) that the three dismissed employees had linked their threats to her opposition to the formation of a union.  She did not give that evidence.  The RRT, in my opinion, was not obliged, as a matter of procedural fairness, to warn her that her answers were insufficient to establish her case.

unnecessary to deal with the privative clause

54                  Since I have concluded that the RRT did not commit a jurisdictional error, it is unnecessary to consider whether this Court has power to grant relief in respect of all or any of the grounds relied upon by the applicant.  I note, however, that Gyles J has recently held that s 474 of the Migration Act is inconsistent with the RRT having an implied duty to observe procedural fairness going beyond the requirements of Div 4 of Part 7 of the Act: NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263, at [34]-[37].

conclusion

55                  The application should be dismissed.  The applicant must pay the Minister’s costs.

Associate:

Dated:              27 March 2002