FEDERAL COURT OF AUSTRALIA

Applicant VBAB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 804

MIGRATION -  Review of decision of Refugee Review Tribunal – Whether Tribunal misled applicant as to its acceptance of her evidence or credibility – Whether breach of rules of natural justice by denial of procedural fairness – Whether Tribunal failed to comply with s 425 – Whether Tribunal committed a reviewable error in determining whether applicant had a well-founded fear of persecution – Effect of privative clause in s 474 – Whether privative clause excludes review for breach of rules of natural justice – Whether every breach of rules of natural justice amounts to jurisdictional error.

Commonwealth Constitution s 75(v)

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 420, 425, 474, 475A

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

Re Refugee Review Tribunal;  Ex parte Aala (2000) 204 CLR 82

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

Minister for Immigration and Multicultural Affairs v Bhardwaj [2000] HCA 1

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Minister for Multicultural Affairs v Yusuf (2001) 180 ALR 1

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

Stead v State Government Commission (1986) 161 CLR 141

Mahon v Air New Zealand Ltd [1984] AC 808

Minister for Immigration v Cho (1999) 92 FCR 315

Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671

Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362

Kioa v West (1985) 159 CLR 550

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. 

Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290

R v Coldham; Ex parte The Australian Workers’ Union (1983) 153 CLR 415

Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602

Walton v Ruddock [2001] FCA 1839

Wang v Minister for Immigration and Multicultural Affairs [2002] FCA 167

NAAX v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 263

NABE v Minister for Immigration and Multicultural Affairs [2002] FCA 281

Craig v The State of South Australia (1995) 184 CLR 163

Ratumaiwai v Minister for Immigration and Multicultural Affairs [2002] FCA 311

Turcan v Minister for Immigration and Multicultural Affairs [2002] FCA 397

Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438

NABM v Minister for Immigration and Multicultural Affairs [2002] FCA 335

NACT v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 618

Kwan v Minister for Immigration and Multicultural Affairs [2002] FCA 498

Awan v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 594

SBBK v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 565

SAAP v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2002] FCA 577

Kioa v West (1985) 159 CLR 550

Abebe v The Commonwealth (1999) 197 CLR 510

Salemi v MacKellar [No 2] (1977) 137 CLR 445

R v Commonwealth Rent Controller;  Ex parte National Mutual Life Association of Australia (1947) 75 CLR 361

APPLICANT VBAB OF 2002  -v-  MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 73 of 2002

RYAN J

25 JUNE 2002

MELBOURNE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The decision of the Refugee Review Tribunal of 4 February 2002 be affirmed.

3.         The applicants pay the respondent’s costs of the application, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

1                     The applicant is a citizen of Afghanistan who arrived in Australia on 28 May 2001.  On 30 May 2001, she and her two older children applied for protection (Class XA) visas.  A further child was included in the application on 2 October 2001.  On 20 December 2001, a delegate of the respondent Minister refused the application for protection visas and, on 21 December, the applicant exercised the right to seek a review of that refusal which is afforded by the Migration Act 1958 (“the Act”).  A hearing took place before the Refugee Review Tribunal (“the Tribunal”) on 25 January 2002 and, by a decision dated 4 February 2002, the Tribunal affirmed the refusal to grant protection visas.

The background to the application and the applicants’ claims.

2                     In its reasons for decision the Tribunal gave this summary of the applicant’s circumstances and her claims to be accorded protection as a refugee;

“The applicant and her older children arrived in Australia on a flight from country A. Documentation on the applicant's file indicates that the applicant may have initially boarded the flight in country B under a different name. On arrival in Australia she had no passport or other travel document. She had in her possession an Afghan identity book known as a Taskera. The Document Examiner was unable to conclude whether or not this document was genuine because he did not have an authenticated specimen with which to compare it.

In her application for a protection visa, the applicant states her date of birth. She was born in village A, district A of a named province in Afghanistan. She states that she is an Hazara and a Shi'a Muslim. Her parents and siblings are still in Afghanistan.

The applicant states that she was married in the 1990s. She stated the years in which her children were born in district A. The applicant states that her husband's whereabouts are unknown.

In a statement submitted with her application for a protection visa, the applicant states that her husband worked with his brother in a shop selling goods. On one occasion when the stock in the shop was low, and the usual supplier was unavailable, an unknown man approached the applicant's husband and brother-in-law offering to bring them new stocks. The applicant's husband agreed and paid the man a sum of money as an advance payment. The man returned after a week. He did not bring any goods but demanded the rest of the money. The applicant's husband was not in the shop at the time, but the applicant's brother-in-law refused to pay the rest of the money until he had sighted the goods. The man became abusive, and said to the applicant's brother-in-law "You are a Hazara. Your life and death depends on me". An argument ensued and the two men began fighting. The applicant's brother-in-law, who was a teenager, was severely beaten, but during the altercation the other man hit his head on the wall and sustained a minor injury. He then threatened the applicant's brother-in-law that he would kill him. The man left the shop but returned with some other people who were armed. They looted the shop and took away the applicant's brother-in-law. They then came to the applicant's home. They grabbed her husband and beat him. Then they searched the house, and found religious books from Iran, one of which also had a picture of the Hazaras' leader, Mazari.

The applicant claims that at the time the men came, she was teaching the Holy Koran to the neighbouring children. She claims that the men accused her family and the government of Iran of supporting the Hezb-e-Wahdat party. They demanded that she should leave the house and go with them. The applicant said that she began crying and screaming. The men took her husband away, but one of them remained guarding the house. The applicant claims that this man began interrogating her and threatening to kill her husband and children. The applicant claims that she feared she would be raped. The applicant told the man that she had no support from Iran she was just teaching the children some religious principles. The applicant claims that her mother-in-law then appeared, and the man began to question and threaten her.

The applicant claims that the next night the man guarding the house fell asleep. The applicant, her children and her mother-in-law sneaked out of the house and escaped through a neighbour's property. They went to a house belonging to a friend of her father-in-law, and begged him for help. The applicant claims that if the men took her with them as they were planning to do, they would have raped her and then killed her.

The applicant claims that the next day she and her children commenced their journey out of Afghanistan. When they arrived in Pakistan, her father-in-law's friend told her that she was safe. The applicant claims that she still did not have peace of mind because she was worried about her husband.

The applicant claims that after the Taliban took power in Afghanistan she felt hopelessness and despair. She claims that she never felt safe because the Taliban were so brutal to women, and she could not leave her house because she feared being raped.

The applicant claims that she fears that if she returns to Afghanistan she will be stoned and killed by the Taliban. She states that they will kill her because she is a Hazara woman and a Shi'a, and because she taught her children Shi'a religious principles. She states that the Taliban will kill her because of her husband's problem with them and because she managed to escape.”

3                     The Tribunal then noted that a linguistic analysis of the applicant’s speech by a Swedish agency had concluded that she spoke with a Kabuli accent, ie one attributed to residents of Kabul, the capital of Afghanistan.

4                     At the hearing before the Tribunal on 25 January 2002, the applicant, through an interpreter, amplified the claims which she had earlier made in support of her application for a protection visa.  Additional matters noted by the Tribunal in its reasons were;

“The applicant informed the Tribunal that she was a young adult. She was born in village A in district A in Afghanistan. She has a number of siblings. Her father was a shopkeeper in Kabul, but the shop burned down several years ago and her father had returned to village A. The applicant claimed that she didn't know whether or not her family was still living in village A. The Tribunal asked if they had been living there at the time she left Afghanistan. The applicant responded that she didn't know. The Tribunal noted that she had informed the delegate that she had travelled to the district town frequently. The applicant claimed that the last time she had visited was when one of her children was born there a few years ago. She claimed that she hadn't been in contact with her family since then. The Tribunal asked the applicant which towns she passed through when she travelled from her home in Kabul to district A. The applicant described two alternative routes.

The applicant said that her family had a house in village B, in Kabul province, which was a long drive from the centre of Kabul City. The applicant stated that this house had been destroyed and no one was living there now. The applicant stated that she had not travelled from village B to the centre of Kabul for some years.

The applicant said that she had attended a government school in village B. In winter she had studied the Koran with the Mullah. The applicant named the 12 Imams venerated by Shi'a Muslims and identified important religious festivals and holy places for Shi'as.

The applicant informed the Tribunal that her husband's family also came from the district A area, and they also had a house in village B. When she married, she went to live with her husband's family in village B. Her husband's father was dead, so she had lived with her husband, her children, her mother-in-law and her brother-in-law. The applicant said that her husband's shop was in village B. He did not go into Kabul to buy items for the shop, as someone brought them to him. The applicant described the shop and the goods which were sold there. The applicant said that although everyone had been frightened of the Taliban, she and her family had not experienced any problems prior to the incident which had precipitated her departure from Afghanistan.”

5                     The applicant’s amplification in her oral evidence of the events at her husband’s shop has been recorded by the Tribunal in its reasons for decision in these terms;

“The applicant recounted the details of her claim to have been persecuted by the Taliban. She stated that an unknown Pashtun man had come to the shop offering to supply goods. After being given a cash advance, he had returned to the shop a week later without any goods but demanded to be paid. Her husband was at home at the time, and her brother-in-law had refused to give the man more money, and there had been a fight. The man had returned an hour later with some other men who were armed. They had taken her brother-in-law and the goods in the shop. On being asked how she knew what had happened, the applicant said that she had been told later by a neighbour who had been out shopping and witnessed what happened. 

The applicant claimed that when the men came to the house, she was teaching the Koran to the neighbour's children. She said that the men began beating her husband, and that they had said that beating an Hazara was a good thing to do in terms of their religion. She said that they searched the house and found religious books from Iran. She said that the men also found a photograph of Mazari, the former leader of the Hazara party, Hezb-e-Wahdat. The applicant claims that the men accused her of teaching the children to be followers of Khomeini, and told her that they hated Shi'as.

The applicant claims that the men accused her family of supporting Iran and of being members of Hezb-e-Wahdat. She informed the Tribunal that although her family prayed for Hezb-e-Wahdat, they were not members of the party and had not fought for Hezb-e-Wahdat.

The applicant stated that a number of men searched her house, and one remained in the front yard. She said that the brother of the man who had come to the shop was minding her husband.  The applicant claims that the men told her to come with them, but she cried and begged them and they allowed her to stay. A number of the men took her husband, and one remained guarding the house. The applicant said that she did not know where they had taken her husband. The applicant claimed that the man who remained accused her of helping Hezb-e-Wahdat. When her mother-in-law returned, this man questioned her mother-in-law. On being asked why the man had remained at the house, the applicant said that he may have thought that members of Hezb-e-Wahdat would come to the house. The applicant claimed that the man remained at her house for two days and two nights. When he fell asleep, she and her mother-in-law and the children climbed a ladder and escaped into a neighbour's house and from there they went to the house of a friend of her father-in-law. The applicant said that she had stayed for a few hours at this house and then her father-in-law's friend had driven them to Pakistan.  The applicant described the route she claimed they had taken to the Pakistani border.

The Tribunal noted that the applicant had not identified the men who had harmed her family as Taliban. She had only said that they were Pashtuns. The applicant said that the man at the shop had said that his brother was a Taliban. She said that he spoke Dari. On being asked what colour the men's turbans were she said that they were black. The Tribunal commented that it was strange behaviour for the Taliban to leave someone to guard the house instead of taking her away. The applicant stated that the two men brought by the first man were Taliban, and they were speaking Pashtu. The Tribunal noted that not all Pashtuns belonged to the Taliban. The applicant said that the men had beaten them because they were Hazaras and Shi'as.”

6                     The Tribunal then described answers given by the applicant to questions posed to her by the Tribunal itself.  The Tribunal obviously regarded some of the applicant’s responses as less than satisfactory.  For example, it noted;

“The applicant was asked who were the leaders of the Taliban at the time she left Afghanistan. The applicant was able to name Mullah Omar, but could not name any other national or local leaders. She offered the name of another person, X, but did not know what this person did. She did not know the name of the Taliban commander in charge of her area, although she said that she believed that the Taliban were based in the military school.”

7                     The Tribunal went on to record that it had explained to the applicant that it was trying to establish whether she had been living in Afghanistan as recently as she had claimed.  In that context, the Tribunal noted that the applicant had only recalled fighting in Bamiyan and in the northern part near Panjsher and did not know if there had been fighting near Kabul.  When asked to try to recall events in May 2001 shortly before she claimed to have left Afghanistan, the applicant repeated her reference to “big fighting” in Bamiyan and recounted fighting between different parties - “Panjsheris, Wahdat and Tajiks.”  She had been unable to recall any edicts issued by the Taliban shortly before she left.

8                     The Tribunal devoted a considerable part of its reasons to an examination of the applicant’s account of the means by which she had left Afghanistan.  She claimed to have left from Peshawar in Pakistan pursuant to arrangements made by a smuggler who had procured passports and purchased air tickets.  The money had been supplied partly in Afghani currency by her mother-in-law and had been supplemented by money provided by a friend of her father-in-law who had facilitated her departure.  As this passage reveals, the Tribunal was particularly sceptical about the route by which the applicant had flown from Pakistan to Australia;

“The Tribunal asked the applicant if she had flown straight to country A from Peshawar, or if she had changed planes. The applicant said that she had not changed planes, although the plane had stopped somewhere but she had not got off the plane. She did not know the airline she had flown with. She said the smuggler had been with her at this stage. The applicant said that she had arrived in country A when it was almost evening. She had spent a few days there, and then she had returned to the airport for the flight to Australia. She could not recall if the flight to Australia had left from the same terminal where she had arrived. The applicant claimed that the smuggler had taken her onto the plane, but she had not seen him again. She claimed that she had looked for him everywhere on the plane, but he was not on it. The Tribunal noted that it was not possible for the smuggler to have been able to take her onto the plane but not to have boarded the plane himself. The applicant said that the smuggler had told her in the little corridor leading directly onto the plane that from now on he would have nothing to do with her.

The Tribunal informed the applicant that it had several problems with her account of her travel to Australia. From checking the internet web sites of the Pakistan tourist authority, Pakistan's national carrier, Pakistan International Airlines, and the Country A Airport information site, the Tribunal believed that it was not possible to fly directly to country A from Peshawar. She would have had to board an international flight in Karachi, Islamabad or Lahore. The Tribunal also informed the applicant that it did not accept her account of when she last saw the smuggler. The security arrangements at the country A Airlines terminal at the airport were such that it was not possible for a person who was not travelling on the flight to get near the plane at all. There was a checkpoint at the entrance to the departure lounge, and it was not possible for a person who was not travelling on the flight to even get into the departure lounge, let alone into the corridor leading to the plane.”

9                     The Tribunal then noted that the applicant had claimed that there had been no way of contacting her family in Afghanistan since her arrival in Australia.  It observed that the applicant claimed that, because she was a woman, an Hazara and a Shi’a, it was still unsafe for her to return despite the overthrow of the Taliban and the installation of the government of Hamed Karzai which included Hazaras and had been endorsed by Khalili, the leader of the Hazara party, Hezb-e-Wahdat. 

10                  On 30 January 2002, Ms Donovan, a solicitor and migration agent employed by the Refugee and Immigration Legal Centre Inc (“RILC”) who had advised the applicant during the hearing, made a supplementary written submission on behalf of the applicant.  The effect of that submission, as recorded by the Tribunal, was;

“The adviser noted that there had been significant political changes in Afghanistan, and the Taliban had been largely ousted from power. The adviser submitted that as the applicant's husband and brother-in-law were presumed to have been killed by the Taliban and the whereabouts of the other members of the applicant's family were uncertain, if the applicant returned to Afghanistan she would find herself alone with the care of her young children. The adviser submitted that the applicant would be without adult male protection, and would be at risk of persecution as a member of a social group comprised of "women at risk". The adviser submitted that without financial support and having to care for young children, the applicant's work options were limited and she might be forced to beg on the streets, which would make her more vulnerable to persecution because of her ethnicity and her religion. The adviser speculated that the applicant might seek to find her birth family in her home province, which was under the control of Pashtun tribal warlords with a history of persecuting Hazaras. The adviser noted that the role of the international security force was confined to protecting the interim administration in Kabul, and lawlessness was rife in some areas. The adviser submitted that this created an environment where people could be persecuted for Convention reasons with impunity. The adviser referred to recent Tribunal decisions (by Tribunals differently constituted) which had reviewed the treatment of Hazaras in the past and had concluded that there was no state protection for Hazaras in Oruzgan and Ghazni. The adviser submitted news reports about the activities of tribal warlords and the security situation in Afghanistan, and reports identifying potential sources of instability in the new government.”

11                  Under the heading “Findings and Reasons”, the Tribunal accepted that the applicant was an Afghani national of Hazara ethnicity and a Shi’a Muslim by religion.  However, it did not accept her claim to have recently escaped from Afghanistan.  In that respect, the Tribunal said;

“The Tribunal is not satisfied that the applicant recently escaped from Afghanistan in the circumstances she described. When the Tribunal asked the applicant about life in Afghanistan under the Taliban, her answers consisted of vague generalities which did not satisfy the Tribunal that she had experienced Taliban rule herself.”

12                  There was then reference to “country information” which detailed a number of restrictions on education, work and social and cultural activities which had been imposed by the Taliban, particularly on women in Afghanistan.  The Tribunal’s reasons then continued;

“The Tribunal considers that if the applicant had lived under Taliban rule for some years as she claimed to have done, she would have observed the Taliban's implementation of these rules and would have been able to provide a detailed description of them. The Tribunal also notes that the applicant had difficulty identifying Taliban leaders, and did not know the name of the local Taliban commander, a fact which the Tribunal considers she could reasonably be expected to know. When asked about events which took place shortly before her departure, she correctly identified some particular damage. However, there was reporting of this damage in the international media, and the Tribunal is confident that it would have come to the attention of an Afghan Hazara living outside Afghanistan at the time. The applicant was unable to identify less publicised events which took place in Afghanistan, even though some of these events would presumably have been important to her if she had been living in Afghanistan at the time.”

13                  By way of exemplifying a matter which the Tribunal considered the applicant should have known had she lived in Afghanistan during 2001, the Tribunal referred to another item of “country information” dated 1 April 2001 reciting the giving of permission to Shi’a Muslims to celebrate, for the first time since 1996, traditional Muharram rituals.  That permission was exercised, according to the information, by thousands of devotees in the main Chendawol mosque in Kabul.

14                  Reliance on another piece of country information dated 14 April 2001 enabled the Tribunal to make this further observation;

“The applicant was asked to identify parts of Afghanistan where fighting was taking place at the time she claimed to have left. She correctly identified that there was fighting in the north near Panjsher and there had certainly been fighting in Bamiyan earlier in the year. However, the applicant did not know if there was fighting near Kabul. In fact, the Shomali Plains near Kabul have been part of the frontline since 1996.”

15                  As to the applicant’s claim that there had been fighting between Panjsheris, Wahdat and Tajiks shortly before she left Afghanistan, the Tribunal pointed out that;

“There were certainly conflicts between these groups prior to the Taliban taking over Kabul, but through the repressive measures they adopted, the Taliban succeeded in ensuring that their version of law and order prevailed in the areas under their control, and the applicant's claim that there was fighting between the different ethnic groups in Taliban-controlled Kabul is not supported by country information available to the Tribunal.”

16                  The Tribunal went on to note further items of “country information” which it said were not consistent with that statement by the applicant, and concluded;

“The cumulative effect of these gaps and inaccuracies in the applicant's knowledge of the situation in Afghanistan at the time she claimed to have left the country, causes the Tribunal to strongly doubt that the applicant was living in Afghanistan until a short time before she arrived in Australia.

The Tribunal's concerns about the applicant's account of her travel to Australia add to its doubts that she left Afghanistan at the time and in the circumstances she has claimed. The Tribunal notes that the applicant had to be prompted when asked about the arrangements for obtaining her passport in Peshawar, and, as discussed with the applicant at the hearing, the Tribunal does not accept that the applicant could have flown from Peshawar to country A without changing to an international flight in another city in Pakistan. Nor does the Tribunal accept that it was possible for the smuggler to retain the applicant's documents by taking her almost onto the plane to Australia before leaving her in country A. The physical security arrangements in country A do not allow people who are not boarding the flight to enter the departure lounge. The Tribunal finds that the applicant did not travel to Australia via Pakistan as she has claimed, and this gives the Tribunal further cause to doubt her claims about the circumstances in which she left Afghanistan.

Taking into account the above, the Tribunal finds that the applicant was not living in Afghanistan at the time she claims to have left, and concludes that she was living in a third country (or countries) for some period of time, possibly several years, before travelling to Australia. As the Tribunal has found that the applicant was not living in Afghanistan at the time in question, the events she described as having taken place at that time could not have occurred. The Tribunal finds that the applicant's claim that she and other members of her family were persecuted by the Taliban a short time before she arrived in Australia is not true, and that her husband and her brother-in-law have therefore not disappeared after being taken by the Taliban in the circumstances described by the applicant.”

17                  The Tribunal accepted that the applicant had a genuine subjective fear of rape or other harm if she were to return to Afghanistan.  It concluded that those fears may have stemmed from events which she had witnessed while living there from 1992 to 1996 when the Mujahideen were in power.  Reference was made to a Human Rights Watch Backgrounder for October 2001 which described rape, summary executions, arbitrary arrest and torture while various factions were struggling for control before the accession to power of the Taliban.  The Tribunal concluded, in this context, that;

“While the applicant has not claimed to have been persecuted herself in the pre-Taliban period, the Tribunal accepts that her fear may be based on her knowledge of the history of persecution of the Hazara people by other ethnic groups which now form part of the new administration of Afghanistan.”

18                  The Tribunal then noted, that, despite the applicant’s suggested links with Germany, it was unable to conclude that she had a present right to seek protection in that country.  On the question of whether the applicant had a well-founded fear of persecution if she were to return to Afghanistan, the Tribunal reviewed recent events in that country since the overthrow of the Taliban and concluded;

“The Tribunal is satisfied that the Taliban has been effectively eliminated as a political and military force in Afghanistan (notwithstanding ongoing mopping-up operations) and no longer governs or administers Afghanistan. The measures being taken by the international community to ensure that Al Quaida forces are prevented from acquiring further weapons should prevent the Taliban's re-emergence as a significant threat to stability in Afghanistan. The Tribunal finds that there is not a real chance that the applicant would be persecuted by the Taliban if she were to return to Afghanistan.

The Tribunal has noted above that there have been conflicts in the past between the different ethnic groups which are now included in the Interim Administration, and also notes that some of the individuals involved are still players in the current political scene. It accepts that Hazaras suffered at the hands of these individuals during the mujahideen period, and that the applicant's fear that history might repeat itself is understandable. The Tribunal also accepts that for much of the past century Hazaras have been regarded by other ethnic groups as being inferior because of their ethnicity, and have at times been mistreated for this reason.

However, the Tribunal is required to consider whether there is a real chance that the applicant herself would be persecuted if she were to return to Afghanistan now or in the reasonably foreseeable future. In the absence of information from which conclusions can be drawn about whether or not it would be safe for a particular individual to return, it would be appropriate to place significant weight on historical evidence. While the Tribunal has certainly taken history into account in this case, the Tribunal is satisfied that the information available to it about the current situation in Afghanistan and, in particular, the situation in the part of Afghanistan to which the applicant could reasonably be expected to return, enables it to conclude that there is not a real chance that the applicant would be persecuted for reason of her ethnicity, her religion, her political opinion or a political opinion imputed to her if she were to return to Afghanistan now or in the reasonably foreseeable future.”

19                  Hazara support for the Interim Authority and the presence of Hazara and Shi’ite Ministers in that administration led the Tribunal to say that it was;

“… … satisfied that as one of the leaders of the Interim Administration, General Fahim is committed to the success of the new government and to working cooperatively with the other ethnic groups and parties represented in it, and there is not a real chance that the applicant would face persecution for reason of her ethnicity, religion or political opinion in an area under his control.”

20                  The Tribunal then made this positive finding that the applicant would have family support if she were to return to Qalie Shada in Afghanistan;

“As discussed in detail above, the Tribunal does not accept that the applicant's husband or brother-in-law were taken by the Taliban or that the applicant parted from her mother-in-law in the circumstances she described. Although the Tribunal has found that the applicant must have been outside Afghanistan for some period of time, she has given the Tribunal no information about the members of her husband's family other than an account which the Tribunal does not accept is true. As the applicant stated in her protection visa application that prior to the claimed incident shortly before her stated date of departure she had a 'good life' and she told the Tribunal that she had not had problems with the Taliban prior to then, the Tribunal considers that it is reasonable for it to assume that the applicant's husband's family, with whom she claims to have lived since she was married in the 1990s, are still in village B. Noting that the applicant stated that she had last visited her home province a few years before she left Afghanistan and she had not been in contact with her family there since that time, the Tribunal does not accept the proposition that the applicant would seek to travel to that province if she returned to Afghanistan. The Tribunal finds that she is able to return to village B and would have family support there.

Taking into account all of the above, the Tribunal is satisfied that there is not a real chance that the applicant would be persecuted for reason of her Hazara ethnicity or her Shi'a religion or for a political opinion supportive of the Hezb-e-Whadat party (imputed or actual) if she were to return to Afghanistan now or in the reasonably foreseeable future.”

21                  On the applicant’s claimed fear of persecution as a woman, the Tribunal accepted that such persecution had occurred under the Taliban but noted;

“As discussed with the applicant at the hearing, the leader of the Interim Administration, Hamid Karzai, has pledged to ensure a significant role for women in the reconstruction of Afghanistan, and to support education and employment opportunities for women (Afghan interim leader pledges to empower women, Reuters Business Briefing, 21 January 2002). Foreign governments and international organisations have agreed to support programs for women. Two women have been appointed to the cabinet of the Interim Administration, and there is a portfolio called Women's Affairs. The minister responsible for this portfolio is one of the Vice Chairs, an Hazara woman doctor named Sima Simar, who has earned recognition for her work in providing education and health services for women in rural communities despite the opposition of the Taliban. The international media have been full of reports about women on television, women removing their burqas, women enrolling at university and girls returning to school.”

22                  Accordingly, the Tribunal expressed itself satisfied that, if the applicant were to return to Afghanistan, she would not be persecuted because of her membership of the social group “women in Afghanistan.”  Nor did it regard her as at risk because of her membership of the narrower social group, single young women in Afghanistan without male protection.  The Tribunal’s rejection of that ground for a fear of persecution was based on its earlier refusal to accept that the applicant’s husband and brother-in-law had been taken by the Taliban and that the whereabouts of her mother-in-law were unknown. 

Jurisdiction of the Court

23                  It is common ground between the parties that the applicant’s application for review of the Tribunal’s decision falls to be determined under the regime for judicial review now contained in Part 8 of the Act which includes s 474.  That section was inserted into the Act by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) which came into operation on 2 October 2001.  A “privative clause decision” is defined by s 474(2) of the Act as follows;

“(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), other than a decision referred to in subsection (4) or (5).”

Section 474(1) of the Act provides;

“(1)     A privative clause decision:

(a)                 is final and conclusive; and

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

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

24                  The applicant’s further amended application sought an order in the nature of certiorari quashing or setting aside the decision of the Tribunal and was expressed to be made pursuant to s 475A of the Act.  That section provides;

“Section 476 does not affect the jurisdiction of the Federal Court under section 39B or 44 of the Judiciary Act 1903 or section 39 of the Federal Magistrates Act 1999, or the jurisdiction of the Federal Magistrates Court under section 483A of this Act, section 44 of the Judiciary Act 1903 or section 32AB of the Federal Court of Australia Act 1976, in relation to:

(a)               a privative clause decision that is a decision made on a review by a Tribunal under Part 5 or 7 or section 500;  or

(b)               any other decision in respect of which the court’s jurisdiction is not excluded by section 476.”

Applicant’s contentions

25                  At the hearing, the applicant obtained the leave of the Court to amend her application to add a new ground.  The new ground, set out in paragraph 1 of the applicant’s further amended application was in these terms;

“1.       In determining that Australia did not owe protection obligations to the Applicant and in determining therefore to affirm the decision of the Respondent’s delegate, the Tribunal exceeded its jurisdiction, or committed a jurisdictional error.

Particulars

i)                    The Tribunal denied the Applicant natural justice in the manner it conducted its hearing pursuant to s 425 of the Migration Act on 25 January 2002, and then in the manner it discharged its jurisdiction to review the decision of the Respondent’s delegate.

ii)                  The Tribunal misled the Applicant and her adviser by expressly suggesting at the hearing that the Applicant’s account of when and why she fled Afghanistan was

1)                 Accepted and believed by the Tribunal to the extent where the Applicant’s credit was not a matter which would affect the outcome of the Tribunal’s decision; and/or

2)                 Was irrelevant to the task before the Tribunal.

iii)                In fact, the Tribunal in its decision expressly rejected some of the Applicant’s nominated Convention grounds on the basis that it did not accept her account of when and why she fled Afghanistan as true.

26                  The applicant relied on the following two further grounds which are set out in paragraphs 2 and 3 of the Further Amended Application;

“2.       In determining that Australia did not owe protection obligations to the Applicant and in determining therefore to affirm the decision of the Respondent’s delegate, the Tribunal exceeded its jurisdiction, or committed a jurisdictional error.

            Particulars

(i)                 The Tribunal found that the Applicant was Hazara, Shi’a Muslim and would be returning to Afghanistan as a woman alone with three children.

(ii)               The Tribunal found that in the past, persons in the Applicant’s situation had a well founded fear of persecution in Afghanistan. 

(iii)             The Tribunal misconstrued its task in assessing whether circumstances had changed in Afghanistan so that the Applicant’s fear of persecution was no longer well founded.

(iv)             The Tribunal failed to ask itself whether the changes reported in Afghanistan were sufficiently durable, and the changed circumstances sufficiently stable, so as to remove any real possibility of persecution of persons in the Applicant’s position.

(v)               Instead, the Tribunal approached its task by reference to changes which, by the short chronological time in which they had occurred, by reason of the continuing instability of government, and by reason of the conflicting and inconsistent country information, could not be characterised as sufficiently durable to justify a finding that the Applicant’s fears were no longer well founded.

3.         Further or alternatively to paragraph 2, in determining that Australia did not owe protection obligations to the Applicant and in determining therefore to affirm the decision of the Respondent’s delegate, the Tribunal exceeded its jurisdiction, or committed a jurisdictional error.

Particulars

i)                    On the basis of its findings referred to in sub-paragraph (i) and (ii) of paragraph 2 above, the Tribunal misconstrued its task, or asked itself the wrong question, in assessing whether the Applicant faced a “real chance” of persecution in the future.

ii)                  The Tribunal did not in fact apply an assessment based on possibilities, discounting only those which were far fetched or remote.

iii)                Instead the Tribunal applied an assessment which required it to be satisfied to an impermissibly higher level of persuasion that the Applicant would face persecution for a Convention reason in Afghanistan.”

27                  With respect to the first ground, the applicant contends that substantial parts of the Tribunal’s findings have no basis other than its disbelief of the applicant’s account of when, and why, she came to flee Afghanistan.  The applicant contends that, at the hearing, the Tribunal made it clear to her and her adviser that it did not disbelieve her account of how she came to flee Afghanistan, and in any event, that was not a material issue in the Tribunal’s consideration of the applicant’s claim.  The applicant submits that the Tribunal gave the applicant no notice or opportunity to make submissions after it had revised the view which it had indicated at the hearing in relation to the applicant’s account of how and when she came to flee Afghanistan.  As the submissions formulated by the applicant’s migration agent had been detailed and responsive to the matters her adviser perceived might be troubling the Tribunal, the applicant contends, the Court can be satisfied that, if the Tribunal had disclosed its perception that the applicant had falsified her account of fleeing Afghanistan, that matter would have been addressed in some detail by the applicant’s adviser.

28                  The resultant lack of procedural fairness, the applicant contends, constituted a significant denial of natural justice.  Reference was made in support of this contention to the recent judgment of the High Court in Re Refugee Review Tribunal;  Ex parte Aala (2000) 204 CLR 82, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 and Minister for Immigration and Multicultural Affairs v Bhardwaj [2000] HCA 1.  A failure to afford procedural fairness, the applicant’s argument proceeded, results in the decision-maker’s exceeding jurisdiction so as to attract prohibition under s 75(v) of the Constitution.

29                  The applicant contends that there is nothing in the language or structure of the Act which suggests an intention to exclude the operation of the common law rules of natural justice.  In the alternative, the applicant contends that the Tribunal acted in breach of s 425 of the Act which was said to oblige the Tribunal to give the applicant a hearing which was meaningful and which enabled her to present all the material she wished.  Reference was made in the same context to s 420 of the Act, noting that it requires the Tribunal to provide a mechanism for review which is “fair” and directs it in reviewing a decision to act according to “substantial justice”.

30                  In support of the other two grounds of the further amended application it was said that, if the applicant’s claim had been considered by the Tribunal in mid 2001, it would have been concluded that Australia owed the applicant a protection obligation (subject to acceptance of her account of when and why she fled Afghanistan).  The applicant contends that if there has previously been a real and present threat of persecution, the Tribunal cannot discount that threat to a level of “mere assumption or speculation” in the absence of material which tends to establish significant stable and durable change in the country of origin.  Here, it was noted, the Tribunal made no references to any authorities concerning the assessment of political or other change after the applicant had left his or her country of origin.  The Tribunal confined itself to examining some recent media reports in the context of the intervention in Afghanistan by the United States and its allies and the recent formation of an interim government.  According to the applicant, the Tribunal should have examined the material before it through a prism of how durable and stable the changes in Afghanistan were.  In discounting what was previously a well founded fear of persecution to the extent of finding that Australia no longer owes a protection obligation to an applicant, the Tribunal must, it was said, ask itself whether the material on which it proposes to rely is reliable, realistic, exaggerated, inflated, merely the expression of hopes or wishes or part of the broad brush approach which the media inevitably take to reporting complex social and political upheavals.

31                  The applicant contends that the Tribunal was required to consider whether the presence of international assistance in Afghanistan is an adequate substitute for state protection.  The manner in which the Tribunal assessed the country information and the changed circumstances in Afghanistan was said to reveal a misunderstanding of the “real chance” test.  Counsel for the applicant pointed to the judgment of McHugh J in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 as indicating a very low threshold for satisfaction of the “real chance” test, whereas, she submitted, the Tribunal had applied a higher standard.

32                  It was further submitted that none of the three grounds relied upon is protected by the privative clause erected by s 474 because each discloses jurisdictional error.  The applicant contends that, for the purpose of applying s 474, the jurisdiction of this Court is equivalent to that of the High Court under s 75(v) of the Constitution.  Accordingly, if a breach of the applicable principles of natural justice would attract a remedy under s 75(v), it would also attract that remedy under s 39B of the Judiciary Act 1903 irrespective of the operation of the privative clause in s 474 of the Act.  The applicant invokes the concept of jurisdictional error described by the High Court in Minister for Multicultural Affairs v Yusuf (2001) 180 ALR 1.

The respondent’s submissions.

33                  The respondent contends that the correct interpretation of the privative clause embodied in s 474 of the Act is that a decision of the Tribunal is only reviewable if the Tribunal has failed to satisfy one of the three prerequisites for the valid exercise of a decision-making power identified by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, namely;

(a)    the decision-maker must make a “bona fide attempt to exercise its power”;

(b)   the decision “relates to the subject matter of the legislation”; and

(c)    the decision is “reasonably capable of reference to the power given to” the decision-maker.

34                  The respondent contends that none of the grounds of the further amended application, even if made out, establishes a failure to comply with any of the three conditions postulated in Hickman.  On a proper construction of s 474, the respondent argues, any failure by the Tribunal to comply with the common law rules of natural justice is not reviewable.  Further, the respondent contends, there is no express provision of the Act inconsistent with s 474(1).

35                  In any event, the respondent denies that the applicant’s criticisms of the Tribunal’s reasons can be sustained in a way sufficient to support the setting aside of its decision.  As to the applicant’s first ground, the respondent contends that the Tribunal gave the applicant many opportunities to satisfy it that she had been in Afghanistan in about May immediately before she came to Australia.  In particular, the respondent points to the Tribunal’s extensive questioning of the applicant about the circumstances of her flight from Afghanistan, her life under the Taliban, the identity of the leaders of the Taliban and the fighting between different ethnic groups near Kabul.  Reference was made in support of this contention to a number of passages of the transcript and it was further submitted that nothing in the references cited by the applicant suggested that the Tribunal had conclusively accepted the applicant’s account of how she fled Afghanistan.  A fair reading of the transcript of the hearing, the respondent contended, leaves no doubt that, at the end of the day, the time of the applicant’s departure from Afghanistan remained a live issue.  In those circumstances, so the argument went, it was a matter for the applicant’s adviser to choose whether or not to direct more material to that issue.  In any event, the respondent contends, there is nothing to suggest that the applicant could have led further evidence had it been made clear that the Tribunal was unpersuaded of the truth of her account.

36                  In relation to the second and third grounds, the respondent disputed that the Tribunal was obliged to ask whether the changed circumstances in Afghanistan were “sufficiently durable” and contended that the Tribunal had correctly applied the “real chance” test.  Moreover, it could not be said that its reasons disclosed that the Tribunal had applied an impermissibly high standard in determining whether that test had been satisfied.

Did the Tribunal mislead the applicant?

37                  The transcript reveals that the time when, and circumstances in which, the applicant had left Afghanistan were raised on a number of occasions during the hearing.  The following questions are recorded at pages 24-26 of the transcript as having been posed by the Tribunal;

                                    “What I’m trying to find out here is I want to find out from you some of the sort of things that were happening in May last year at the time you left Afghanistan.  Can you tell me some of the sorts of things that the Taliban did around that time?”

…… …

TRIBUNAL MEMBER:           “Why I’m asking you these questions is that I want you to have an opportunity to satisfy me that you were living in Afghanistan in May last year because as you know there is a question as to whether you had been living somewhere else before you came here.  So what I want you to tell me is the most recent events you can think of that happened before you left Afghanistan so that I know that you were in Afghanistan in May last year.”

… … …

TRIBUNAL MEMBER:           “What I’m trying to say, what I’m trying to get you to tell me is things that happened shortly before in May last year so that I know that you were actually living in Afghanistan at that time.”

38                  To that last question the applicant replied through an interpreter;

“I was in Kabul City when these things happened, the ones I told you.”

39                  The Tribunal then immediately asked;

                                    “You understand that there is some concern that because of how you arrived in Australia, that you had not been living in Afghanistan immediately before you came to Australia.

40                  At p 28 the Tribunal returned to the time of the applicant’s departure for Australia by asking;

“Now, is there anything else that you can think of that would help me know that you were in Afghanistan shortly before you came to Australia?”

41                  The following questions, towards the end of the hearing, are attributed to the Tribunal at pp 44-45 of the transcript;

“… … I am not sure about when you left Afghanistan, and I do have some concerns about how you got to Australia, but that’s not really that important.  The critical issue is whether it is safe for you to go back.  I really will give that very careful thought.”

…… …

“All right, I will think very hard about what the – whether it is possible for you to go back or not.  I will think about it.”

…… …

“Was there any other points that you wanted to make to me?

42                  After an exchange in which the applicant invited the Tribunal to put itself in her (the applicant’s) position the applicant said;

“First of all I want to know when you are going to give me the answer – the result of this hearing and also – because the first time also I waited for eight months, and I am a woman with my three children in the detention centre.”

43                  That request prompted this response from the Tribunal:

“It partly depends on what your adviser wants to do. I could probably write a decision in about a week or so, but if your adviser feels it important to provide additional information or other things that she feels is important, then I would wait for that.  I appreciate you have been waiting a long time, and the reason why I think it took so long the first time was the department was trying to do all these checks with other countries, and I’m not really interested in trying to do that.  At the same time I don’t want to delay, but I don’t want to rush either, I want to make sure I have looked at everything.  Perhaps we will give your adviser a chance to follow anything up or tell me anything that she might want to.  Did you want me to follow up any particular aspects?”

44                  The applicant’s adviser, Ms Donovan, responded;

“Actually there were two points that I thought of that might require some follow-up, but then in your more recent comments I thought perhaps its not important any more.  Could I ask you whether this would be important?”

45                  The following exchange then occurred between Ms Donovan and the Tribunal;

TRIBUNAL MEMBER:           “Yes, sure.”

MS DONOVAN:        “One was your question you asked earlier about why they would leave [the applicant] in her house with her children and her mother-in-law when they took her husband away rather than take her.”

TRIBUNAL MEMBER:           “She provided a reasonable explanation of that.  She said that the men thought they were potentially Hesb-I Wardat, so they’re going to wait to see if any Hesb-I Wardat turned up.  That’s a reasonable answer.”

MS DONOVAN:        “It came up twice, and the second time she said, “I don’t know”, and I was going to clarify that she had said it earlier.  The other one was if you have a concern about her being outside Afghanistan for longer than she is claiming to have been, then I don’t know if it’s still relevant, but she did mention something which triggered something in my mind.”

TRIBUNAL MEMBER:           “The problem is I don’t really think there’s much point in going down the effective protection because we just haven’t got enough information.  If she was in Germany, she has been here over six months and she wouldn’t be able to go back anyway, and I’m quite clearly not going to get enough information to be able to draw anything conclusive out of that.  The only problem I have with all that side of it is credibility.  I really did want to be able to say, “I feel she’s being truthful,” because it is important to be able to say that.”

46                  The Tribunal then returned, at p 47, to the question of the applicant’s departure for Australia, saying;

“I’m not really that interested in the business about Germany.  I have to say I find the explanation about whether or not she said no to be some-what far fetched, but it is not an issue that I have any intention of following up, so I think we will leave it there.  I don’t see any merit in going down that track.  I’m perfectly satisfied she is from Afghanistan.  I wish she could give me something harder which sort of nails her in Afghanistan in May, but I don’t disbelieve anything she has said.”.

47                  That observation prefaced this further exchange;

MS DONOVAN:        “On that very issue then, I remember reading about edict that were issued by the Taliban from time to time, and there were new ones coming out around that time because I started working on Afghan cases around that time.  She mentioned that all the men in – a couple at that time were wearing turbans, and I remember reading of an edict that had been published at that time saying that all the men, and not only the men, but all the young boys, even children, had to wear turbans.”

TRIBUNAL MEMBER:           “What, and the first time that edict came out was only last May?”

MS DONOVAN:        “No, to be honest with you I don’t know when it was, but it would have been not long before I started working on the cases which was June.  So I don’t know whether she can tell you or about other edicts that she -”

TRIBUNAL MEMBER:           “That’s what I was trying to ask.”

MS DONOVAN:        “I think she was thinking about war, but maybe if you say Taliban edict.”

TRIBUNAL MEMBER:           “… … [addressing the applicant personally], what I’m just discussing with your adviser is I would like you to help me be certain that you were in Afghanistan in about May just before you came to Australia.”

INTERPRETER:         “What can I tell you?  Whatever I said, you don’t believe it.”

TRIBUNAL MEMBER:           “I’m wondering if you might be able to – no, I’m not saying I don’t believe you.  I’m just wondering if you – I’m asking you to help me.  I’m wondering if you can remember if round about that time you left or a bit before that, the Taliban issued any new rules about how people had to behave – what they had to wear, what they had to do?  Are there any new regulations?”

INTERPRETER:          “The women were wearing (indistinct) and also the men were wearing (indistinct) and also (indistinct) and also they had to grow a beard.”

TRIBUNAL MEMBER:           “But were these things Taliban had made people do for some time or were they new things?

INTERPRETER:          “It was always like that.”

TRIBUNAL MEMBER:           “I can’t think of anything else that I haven’t tried to – ”

MS DONOVAN:        “No, I think she’s probably done her best considering her limited knowledge.”

TRIBUNAL MEMBER:           “At the end of it all it’s really I think an issue of country information to a large extent.”

MS DONOVAN:        “She certainly hasn’t given an extraordinary account of what was going on as you might expect a person who was pretending to be from Afghanistan at that time.  She might have studied up a bit more; I don’t get that impression.”

TRIBUNAL MEMBER:           “Her story has been consistent all the way through; it’s just an issue of timing, but even that has all been – it’s the same with the flight out.  Really it doesn’t matter that much how she got here, she’s here, and the only issue is can she go back.”

…… …

MS DONOVAN:        “[… …], I don’t want to delay the process a long time, but I do think its important for us to put all the information that we have about what’s happening with Hazaras in Afghanistan now.”

48                  Ms Mortimer of Counsel for the applicant assimilated the present case to Stead v State Government Commission (1986) 161 CLR 141.  In that case the plaintiff, Mr Stead, claimed damages from the State Government Insurance Commission for personal injury arising out of a motor vehicle accident.  One of his claims was that the accident had caused a neurotic condition which had rendered him totally incapacitated for work.  At the trial evidence was given by a psychiatrist, Dr Scanlon, called on behalf of the defendant, that there was no connection between the accident and the neurotic condition.  In the closing address for the plaintiff, Counsel submitted that the trial judge should not accept the doctor’s evidence whereupon the judge said:  “I don’t accept Mr Scanlon on that.  You needn’t go on as to that.”  Counsel did not pursue the matter any further.  Subsequently, in his judgment, the judge accepted the doctor’s evidence on the point in question.  An appeal was taken to the Full Court of the Supreme Court of South Australia on the ground that, by stopping his Counsel from addressing on the topic of Mr Scanlon’s evidence, the judge had denied the plaintiff the opportunity of presenting argument on a vital issue in the case.  The appeal was dismissed and the plaintiff appealed to the High Court which said, at 145;

“The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker L.JJ.) in Jones v National Coal Board, in these terms:

“There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge … No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.”

The general principle is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference?  That qualification is that an appellant court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial.  An order for a new trial in such a case would be a futility.

For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial.  By way of illustration, if all that happens at a trial was that a party was denied the making of submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.

Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially where the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.  True it is that an appeal to the Full Court from a judgement or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties of the primary judge including the power to draw inferences of fact … However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution.  It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial on an issue of fact.  And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.”

49                  Their Honours found that a breach of natural justice had occurred and ordered a new trial confined to the issue of damages.

50                  In Re Refugee Review Tribunal; Ex parte Aala (supra), Gaudron and Gummow JJ said, at 115;

“There is no universal proposition that before the Tribunal ever makes a finding adverse to an applicant, it is necessary for the Tribunal to put to the applicant the concerns which are inclining the Tribunal towards such an adverse finding.  The procedure is inquisitorial and not adversarial.  The requirement of procedural fairness did not require the Tribunal, when, pursuant to par (a) of s 425(1), it gave the prosecutor an opportunity to appear before it to give evidence, to treat what transpired “as though it were a trial in a court of law.”

51                  Their Honours went on to quote this observation of Lord Diplock in Mahon v Air New Zealand Ltd [1984] AC 808 at [160] articulating one of the rules of natural justice;

“The second rule requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result.”

52                  To similar effect is this observation of Callinan J in Aala, at [208];

“Whilst the Tribunal might not have any obligation enforceable at law to give to an applicant an express warning of the possibility or likelihood of adverse findings against him or her, it is an altogether different matter for a Tribunal to misrepresent, however innocently, an important state of affairs bearing upon the way in which a person in the prosecutor’s position might proceed to present his or her case.”

53                  The majority in Aala (Gleeson CJ, Gaudron, Gummow, Kirby, Hayne and Callinan JJ) held that a denial of procedural fairness by an officer of the Commonwealth may result in a decision being made in excess of jurisdiction in respect of which prohibition will issue under s 75(v) of the Constitution.  The other member of the Court, McHugh J, was of the view that it could not be concluded that the denial of procedural fairness to the applicant had made no difference to the outcome of the proceedings before the Tribunal. 

54                  In the present case the transcript of the hearing before the Tribunal read as a whole supports the conclusion that the applicant and her adviser were left under the impression that when she left Afghanistan and how she got to Australia would not be critical to the Tribunal’s decision.  It is true that the Tribunal gave the applicant a number of opportunities to satisfy it by oral evidence that she had been living in Afghanistan in May 2001 and the Tribunal member expressly indicated her scepticism about the applicant’s account of how she fled Afghanistan.  However, by saying in the passages quoted at [41] and [46] above that those concerns were “not really that important” and “I wish she could give me something, which sort of nails her in Afghanistan in May but I don’t disbelieve anything she has said,” the Tribunal can be taken to have induced, however innocently, the belief that the Tribunal’s reservations about those matters would not adversely affect its determination even by way of its evaluation of the applicant’s credit.  Nevertheless, the Tribunal in its reasons revived its disbelief of the applicant’s account of those matters as a basis for rejecting the applicant’s assertions that she and members of her family had been persecuted by the Taliban about two or three weeks before she arrived in Australia and that her husband and brother-in-law had disappeared after being taken by the Taliban.  That rejection was central to the Tribunal’s ultimate conclusion that it was safe for the applicant to return to Afghanistan.  It follows that the applicant and her adviser were precluded from making further submissions or putting further information in relation to matters which were decisive of the result. 

55                  In light of this conclusion and for the reasons set out below, it is necessary for me to consider whether the Tribunal failed to comply with a requirement of the Act.  Although mention was made in the course of argument of s 420 of the Act, the applicant’s amended application and submissions were directed at s 425 of the Act.  Section 425 of the Act provides;

“(1)     The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review

(2)        Subsection (1) does not apply if:

(a)               the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)               the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)                subsection 424C(1) or (2) applies to the applicant.

(3)              If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”

56                  The applicant contended that s 425(1) of the Act imposes on the Tribunal an obligation to give an applicant a hearing which is meaningful and which permits the presentation of all the material that the applicant wishes.  This construction of s 425(1), it was said, has been applied in a number of cases involving interpreters.

57                  The respondent contended, on the other hand, that the Tribunal had complied with s 425 and relied on Minister for Immigration v Cho (1999) 92 FCR 315 as holding that the opportunity to appear and give evidence contemplated by s 425 is narrower than that which would be afforded by application of the full range of requirements of the rules of natural justice.

58                  In Minister for Immigration v Cho, a Full Court of this Court considered the nature of the phrase “opportunity to appear … to give evidence” in the context of the former s 425(1) of the Act.  The applicant in Cho had submitted that the Tribunal must provide a genuine opportunity to give evidence and must disclose material and views which the Tribunal may consider to be adverse to the applicant.  In a joint judgment, Tamberlin and Katz JJ said, at 322;

“In considering the extent of the requirements imposed by s 425 it is important to keep in mind that the exercise is essentially one of statutory interpretation …. Care must be taken not to confuse the question of the interpretation of s 425 according to its language with a question as to whether the full range of natural justice requirements should be injected into s 425 under the guise of giving content to an obligation to afford “an opportunity to give evidence”.  The exercise for the Court in this matter is to give content to the language of s 425 in its statutory context.”

59                  Their Honours went on to say, at 323;

“We do not consider there is any special significance in the reference to the word “genuine” which would expand the content of s 425 beyond the ordinary and natural meaning of the language used.  According to its terms the section simply requires that an opportunity be given to the applicant to appear and give evidence.  Obviously if there is no real opportunity given then the section has not been complied with.  This could arise, for example, where relevant evidence is not admitted or misleading statements are made by the decision-maker which discourage an applicant from calling or proceeding with a particular line of evidence.”

60                  In Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671, another Full Court of this Court considered an appeal from a decision of a single judge dismissing an application for judicial review of a decision of the Tribunal to refuse the applicant a Protection (Class XA) visa.  In that case the appellant had argued that he had not been given a fair hearing by the Tribunal.  The primary judge had rejected that argument.  On appeal the appellant relied on s 425 to contend that the primary judge had erred in not holding that a procedure required by the Act had not been observed or that the decision of the Tribunal was not authorised by the Act.  Further, the appellant submitted that the trial judge had been in error in failing to accept that the decision of the Tribunal involved an error of law being an incorrect interpretation of s 425 or alternatively, an incorrect application of s 425 to the facts of the case. For the purposes of the appeal, the respondent in Chen conceded that s 425(1) imposes an obligation upon the Tribunal to give an applicant for a protection visa an opportunity to give evidence and present arguments to the Tribunal.  Their Honours did not consider it necessary to address in detail the nature and extent of the acknowledged obligation because they were satisfied that what happened before the Tribunal did not indicate that the Tribunal had given to the applicant “such a perfunctory hearing that it was not a “genuine” hearing”.  Their Honours went on to say, at [19];

“In Minister for Immigration and Multicultural Affairs v Capitly (1999) 55 ALD 365 at [31] a Full Court described the obligation imposed on the Tribunal under the previous s 425(1) as being to give “a fair system of administrative merits review”…. It is not the obligation of the Tribunal to put to the applicant all matters which might be expected to be put by a contradictor in adversarial proceedings.  The position of the Tribunal is explained by Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187] in the following terms:

“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 arguments she wishes to advance in support of her contention that she had a well-founded fear of persecution for a Convention reason.  The tribunal must then decide whether the claim is made out.”

61                  In Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 1362 another Full Court of this Court considered the nature of the obligation imposed on the Tribunal by s 425 of the Act.  The question before the Court in that case was whether, if the Tribunal constituted for a particular review had been reconstituted after an oral hearing, the second member was required by s 425 to invite the applicant to appear again and give evidence and present arguments to that new member.  Their Honours held that no such requirement was imposed by s 425 and went on to make the following observations, at [44];

“The right to a hearing is clearly an important and central right in the merits review system established by Part 7 of the Act.  This has been acknowledged in other contexts: See for example Amankwah v Minister for Immigration and Multicultural Affairs (1999) 91 FCR 248 at [13]; Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [20].  The express qualifications in s 425 of the right to be invited to appear concern a limited set of circumstances.  The right to be invited exists unless the applicant’s appearance is unnecessary for the applicant’s point of view because the review will be decided on the papers in favour of the applicant or the applicant consents to the invitation not being extended, or the applicant forfeits the right.  The fact that the right can be lost in certain specified circumstances, and the nature of those circumstances, only serves to underline the Parliament'’ intention that, at least generally, there should be a right to be invited to appear before the Tribunal.

Moreover, while it is not necessary to determine the question for the purposes of this appeal, we do not agree with the Minister’s submissions that the applicant’s right to appear before the Tribunal was diminished to a merely formal right to be invited by the changes made to s 425 by the Amendment Act.  As we have noted, the Amendment Act provided a new right to present argument before the Tribunal and to receive notice of the hearing, as well as a right to be invited to comment on adverse material.  Certainly there is nothing in the Explanatory Memorandum to indicate that the right to be invited to appear was intended to be reduced to a merely formal right.”

62                  I have already found that the Tribunal’s statements in the course of the hearing were calculated to induce in the applicant and her adviser the belief that when and how the applicant had left Afghanistan would not influence the Tribunal’s resolution of the ultimate issues.  As a result, a decision was taken not to address those matters any further.  This is confirmed by the absence from the comprehensive supplementary submissions made by the applicant’s migration agent to the Tribunal of any reference to the time of the applicant’s departure from Afghanistan or her mode of travel to Australia.  As Tamberlin and Katz JJ observed in Cho, a discouraging effect of that kind can preclude the Tribunal from complying with s 425.  In weighing the competing contentions on this issue I have borne in mind Gaudron and Gummow JJ’s reminder in Aala that the procedures of the Tribunal are inquisitorial not adversarial and their implementation should not be scrutinised like proceedings in a Court of law:  (see also Mason J in Kioa v West (1985) 159 CLR 550 at 587; Miah per Gleeson CJ and Hayne J at [31] and [32];  Abebe per Callinan J at [293]-[295];  Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [142];  and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 282).  Nevertheless, I am persuaded on balance that the Tribunal in the present case has failed to comply with s 425 of the Act. 

The Tribunal’s approach to whether the applicant could return to Afghanistan

63                  In support of her submissions on this ground, Counsel for the applicant pointed to Chan v Minister for Immigration and Ethnic Affairs (supra) and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. 

64                  In Chan, Mason CJ, Dawson, Toohey and McHugh JJ, (Gaudron J not deciding) held that an applicant for protection as a refugee can satisfy the definition by showing a genuine fear founded on a real chance of persecution for one of the stipulated reasons.  After a brief review of the phrases adopted by some English and United States courts to determine whether a fear of persecution is “well-founded”, Mason CJ said, at 389;

“I do not detect any significant difference in the various expressions to which I have referred.  But I prefer the expression “a real chance” because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia: see the discussion in Boughey v The Queen [(1986) 161 CLR 10 at p 21] per Mason, Wilson and Deane JJ.  If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 percent chance of persecution occurring.  This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution for political grounds if they are returned to their country of origin.”

65                  McHugh J said, at 429;

“The decisions in Sivakumaran [Reg v Home Secretary;  Ex parte Sivakumaran [1988] AC 958, at [p 994] and Cardoza-Fonseca [Immigration and Naturalization Service v Cardoza-Fonseca (1987) 480 US 421, at p 440] also establish that a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur.  As the United States Supreme Court pointed out in Cardoza-Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted.  Obviously, a far-fetched possibility of persecution must be excluded.  But if there is a real chance that the applicant will be persecuted, his or her fear should be characterized as “well-founded” for the purpose of the Convention and Protocol.”

66                  Applying Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290, their Honours in Chan also held that the time at which the well-founded fear had to exist was when the determination was made.

67                  In the joint judgment of Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Guo, it was observed, at 572-577;

“Chan is an important decision of this court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.  But to use the real chance test as a substitute for the Convention term “well-founded fear” is to invite error.

No doubt in most, perhaps all, cases arising under s22AA of the Act, the application of the real chance test, properly understood as the clarification of the phrase “well-founded”, leads to the same result as a direct application of that phrase…. Nevertheless, it is always dangerous to treat a particular word or phrase as synonymous with a statutory term, no matter how helpful the use of that word or phrase may be in understanding the statutory phrase.  In the present case, for example, Einfield J thought that the “real chance” test invited speculation and that the tribunal had erred because it “has shunned speculation”.  If, by speculation, his Honour meant making a finding as to whether or not an event might or might not occur in the future, no criticism could be made of his use of the term.  But it seems likely, having regard to the context of his Honour’s conclusions concerning the tribunal’s reasoning process, that he was using the term in its primary dictionary meaning of conjecture or surmise.  If he was, he fell into error.  Conjecture or surmise has no part to play in determining whether a fear is well-founded.  A fear is “well-founded” when there is a real substantial basis for it.  As Chan shows, a substantial basis for a fear may exist even though there is a far less than 50 per cent chance that the object of the fear will eventuate.  But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.  A fear of persecution is not well-founded if it is merely assumed or it is mere speculation.  In this and other cases, the tribunal and the Federal Court have used the term “real chance” not as epexegetic of “well-founded”, but as a replacement or substitution for it.  Those tribunals will be on safer grounds, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate.”

68                  In considering whether the present applicant had a well founded fear of persecution, the Tribunal stated that, in the absence of information pertaining to the particular individual, it is appropriate to place significant weight on historical evidence.  The Tribunal went on to express itself satisfied that, on the basis of the information available to it about the current situation in Afghanistan, there was not a real chance that the applicant would be persecuted for the reasons she suggested.  It is true that the Tribunal used the term “real chance” rather than the language of the Convention but I do not consider its use of that phrase to be erroneous.  As the passage just quoted from Guo indicates, the task of the Tribunal was to determine whether the applicant had a well-founded fear that she would suffer persecution if she returned to Afghanistan.  In determining whether a fear is “well-founded”, the Tribunal is required to consider the evidence available to it and determine whether the fear is soundly based rather than resting on mere assumption or speculation.  The Tribunal in the present case took that approach.  It set out the country information on which it relied and, on the basis of that information, it concluded that there had been a significant change in Afghanistan from the circumstances which prevailed when the applicant left that country.  There was no error of law in the Tribunal’s reaching that conclusion by those means.  Further, the Tribunal was required to consider whether the applicant’s fear was well-founded at the date of the hearing and not at some earlier time.  There was nothing in the information relied upon by the Tribunal to suggest that the changes of political control and philosophy in Afghanistan were so temporary or transient as to make the Tribunal’s findings mere assumption or speculation.  Nor was it suggested that the material relied upon by the Tribunal was unreliable, unrealistic, exaggerated or inflated.  For these reasons, the applicant’s second and third ground cannot be sustained.  As I have found above, the error of the Tribunal was in rejecting the applicant as a credible witness because it disbelieved her account of when and how she had left Afghanistan after saying unequivocally at the hearing in the passage quoted at [46] above “I don’t disbelieve anything she has said”.  That unfavourable assessment of the applicant’s credit led the Tribunal to disbelieve the applicant’s assertion that her husband and brother-in-law had been taken by the Taliban and presumably killed and her account of how she had parted from her mother-in-law.  That disbelief, in turn, allowed the Tribunal to find that the applicant was able to return to Qalie Shada and would have family support in Afghanistan.

The operation of the privative clause

69                  Privative clauses like that embodied in s 474 have been the subject of considerable judicial examination, the classic exposition being that of Dixon J in R v Hickman;  Ex parte Fox and Clinton (supra), where his Honour said, at 615;

“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.

Dixon J went on to say, at 616;

“It is …… equally impossible for the legislature to impose limits upon the quasi-judicial authority of a body which it sets up with the intention that any excess of that authority means invalidity, and yet, at the same time, to deprive this Court of authority to restrain the invalid action of the court or body by prohibition.  But where the legislature confers authority subject to limitations, and at the same time enacts such a clause as is contained in reg. 17, it becomes a question of interpretation of the whole legislative instrument whether transgression of the limits, so long as done bona fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells invalidity.  In my opinion, the application of these principles to the Regulations means that any decision given by a Local Reference Board which upon its face appears to be within power and is in fact a bona fide attempt to act in the course of its authority, shall not be regarded as invalid.

In considering the interpretation of a legislative instrument containing provisions which would contradict one another if to each were attached the full meaning and implications which considered alone it would have, an attempt should be made to reconcile them.”

70                  The three pre-conditions identified by Dixon J are often referred to as the “Hickman conditions”.  In several later judgments, the High Court has affirmed, and sometimes elaborated, the application of the Hickman conditions to privative clauses.  Mason ACJ and Brennan J in R v Coldham; Ex parte The Australian Workers’ Union (1983) 153 CLR 415 (“Coldham”) observed at 419 that a privative clause, like s 60 of the Conciliation and Arbitration Act 1904 (Cth), is ineffective to prevent prohibition when the Tribunal transgresses “inviolable limitations or restraints” upon its jurisdiction or powers.

71                  More recently, the High Court in Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602 (“Darling Casino”) considered the operation of a privative clause contained in the Casino Control Act 1992 (NSW).  Gaudron and Gummow JJ observed, at 631;

“It is to be remembered that the Hickman principle is a rule of construction.  This does not appear fully to have been appreciated in the Court of Appeal in the present case.  Accordingly, the question in this case is not one of the meaning and effect of the Hickman principle which seeks to reconcile ‘the prima facie inconsistency between one statutory provision which seems to limit the powers of the [decision-maker] and another provision, the privative clause, which seems to contemplate that that the [decision] shall operate free from any restriction’.  Rather, it is one of the meaning and effect of the statutory provisions in question.  If there is an inconsistency, the Hickman principle requires that it be ‘resolved by reading the…provisions together and giving effect to each’.  However, there are anterior questions; the extent to which the relevant statutory provisions, when properly construed, give rise to an inconsistency to be resolved in that way; and whether the decision in question is one that falls within the area of that inconsistency.”

72                  Their Honours went on to say, at 632;

“The various legislative powers conferred by s 51 of the Constitution are all expressed as being ‘subject to’ the Constitution and thus to the provisions of s 75.  Thus, it has been said that a privative clause cannot prevent this Court from reviewing decisions which involve the refusal by officers of the Commonwealth to discharge ‘imperative duties’ or which go beyond ‘inviolable limitations or restraints’.  On the other hand, it has been acknowledged that such a clause can protect against ‘a mere defect or irregularity which does not deprive the tribunal of the power to make the award or order’, or ‘some procedural defect which would otherwise result in invalidity’.”

73                  And, at 633;

“Mandamus and prohibition are remedies which are granted in cases of jurisdictional error – refusal to exercise jurisdiction, in the case of mandamus, and excess of jurisdiction, in the case of prohibition.  The terms of s 75(v) would be defeated if a privative clause operated to protect against jurisdictional errors being refusal to exercise jurisdiction, or excess of jurisdiction, in the latter case whether by reason of the constitutional invalidity of the law relied upon or the limited terms of a valid law.  However, there is no constitutional reason, in our view, why a privative clause might not protect against errors of other kinds by, within the limits of the relevant legislative powers, operating to alter the substantive law to ensure that the impugned decision or conduct or refusal or failure to exercise a power is in fact valid and lawful.”

74                  At present the application of s 474 to decisions of the Tribunal has not been the subject of a judgment of a Full Court of this Court or the High Court.  There have, however, been several judgments at first instance in this Court revealing significant divergence of opinion.

75                  In Walton v Ruddock [2001] FCA 1839 Merkel J dismissed the application because he found that the grounds relied upon had not been made out on the material before the Tribunal.  However, his Honour went on to consider, without reaching a final conclusion, the effect of s 474 and the relevant authorities.  He observed that the operation of the privative clause needs to be considered in the context of the particular decision and the grounds of alleged invalidity.  After noting the passages from Darling Casino quoted above, he continued, at [31];

“Jurisdictional errors, to which their Honours were referring, include errors of the kind described by Brennan, Deane, Toohey and McHugh JJ in Craig v The State of South Australia (1995) 184 CLR 163 at 179:

“If…an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

The Hickman principle construes the Act in question on the basis that the privative clause has substantive, rather than merely procedural, consequences.  Thus, rather than merely immunising a particular decision from review the clause operates substantively to make a decision made in breach of a statutory requirement valid and lawful, whereas it may otherwise have been invalid and unlawful.  However, consistent with Gaudron and Gummow JJ’s observations in Darling Casino at 632-633 a privative clause does not validate a decision:

* made in breach of an “indispensable condition” (Murray at 399), “imperative duties” or which goes beyond “inviolable limitations or restraints” (R v Metal Trades Employers’ Association: Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248);

* which involves a refusal to exercise jurisdiction or an excess of jurisdiction by officers of the Commonwealth.

In Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 536-537 Gleeson CJ and McHugh J explained why a privative clause cannot cut down judicial review under s 75(v) of decisions of Commonwealth officers which involve jurisdictional error:

“…the decisions of Commonwealth officers - and members of the Tribunal are such officers - cannot be limited by any law of the Parliament.  Laws of the Parliament, made under an appropriate head of constitutional power, may take the conduct of Commonwealth officers outside the scope of the jurisdiction of this Court under s 75(v).  Such laws may do so, for example, by making lawful conduct which would otherwise be unlawful at common law or under State legislation or even under other federal legislation.  But once a question arises as to whether a Commonwealth officer has acted lawfully or within or outside the jurisdiction conferred upon him or her, no law of the Parliament can curtail the jurisdiction of this Court to decide the issue, a jurisdiction which the Constitution has conferred on this Court to protect the people of the Commonwealth and the individual States from excesses of Commonwealth power.”

76                  His Honour went on to consider the application of the principles to a claim of denial of natural justice and said, at [34] – [37];

In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] 179 ALR 238 (“Miah”) a failure to comply with the rules of natural justice by a delegate of the Minister in respect of a decision to refuse to grant a protection visa under the Act was regarded as acting in excess of jurisdiction, with the consequence that prohibition and certiorari in aid of prohibition would issue, as would mandamus, to compel determination of the application according to law.  : at 245 per Gleeson CJ and Hayne J (although their Honours were in dissent in concluding that the prescriptive provisions of the Act manifested an intention to have procedural fairness dealt with by the provisions of the statute, rather than by the more general requirements of procedural fairness), Gaudron J at 260-262, McHugh J at 274 and Kirby J at 290-292.  See also Re Refugee Review Tribunal; Ex parte Aala (2000) 176 ALR 219 at 223, 231 per Gaudron  and Gummow JJ (with whom Gleeson CJ agreed), 258 per Kirby J, and 265 per Hayne J, and Darling Casino at 609 per Brennan CJ, Dawson and Toohey JJ.

The Migration Legislation Amendment (Procedural Fairness) Bill 2001 was intended to amend the Migration 1958 (Cth) by providing that the common law requirements of the natural justice hearing rule do not apply to visa decisions made under the Act.  Had the Bill been passed the Act would plainly provide the clear legislative intention to exclude the rules of natural justice that the majority in Miah found was absent.  The Bill, however, has not been passed with the consequence that, subject to s 474, the decision in Miah is likely to govern decisions made under the Act in relation to the grant, refusal to grant, or cancellation of visas.

Whether s 474 can operate to prevent judicial review of decisions made in breach of the rules of natural justice is not altogether clear.  The breach, being an excess of jurisdiction, is reviewable under s 75(v) of the Constitution.  While there may be a question as to whether the rules are derived from or implied by statute or arise under the common law (see for example Miah at 246, 251, 258, 266 and 286), in so far as the rules have not been abrogated or excluded by statute it has been said that it is not open to the federal legislature to prevent review under s 75(v) of a decision made in breach of the rules: see Miah at 261 per Gaudron J, 270 per McHugh J, and 290 per Kirby J.  See also Re Refugee Review Tribunal; Ex parte HB (2001) HCA 34 at [10].

As s 474 and Pt8 of the Act are altogether silent on compliance or non-compliance with the rules of natural justice there may 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 cf s501(5).  See also Miah at 262 per Gaudron J and 289-290 per Kirby J in respect of s 69(1) of the Act.  Thus, absent a change in the substantive law in that regard, plainly, there are grounds for contending that s 474 does not prevent the review of decisions in respect of visas on that ground.”

77                  In Wang v Minister for Immigration and Multicultural Affairs [2002] FCA 167, Mansfield J considered an application for orders under s 39B of the Judiciary Act that the decision of the Minister’s delegate cancelling the applicant’s Temporary Business Entry (Class UC) Subclass 457 Business (Long Stay) visa pursuant to s 131 of the Act was invalid and of no effect and setting aside that decision.  Mansfield J found that the decision to cancel the applicant’s visa did not comply with s 129 of the Act as the applicant had not been given notice of the intention to cancel the visa.  His Honour quoted from the decision of Gaudron and Gummow JJ in Darling Casino and went on to find that the giving of a valid or adequate notice under s 129 was an essential prerequisite for a valid decision under s 131 of the Act.  He said, at [27] – [28];

“In discerning the legislative intention as to the proper relationship between a decision purportedly made under s 131 where the notice required by s 129(1) of the Act has not been given and the terms of s 474(1), I observe first that s 474 must be intended to operate in the face of certain departures from procedural prescriptions in relation to decisions under the Act, and adopting the "interpretation" qualification in Murray, in respect of all but "inviolable limitations or restraints" imposed by the Act itself.  Brennan J in O'Toole v Charles David Pty Ltd (1990) 171 CLR 232 at 274 (O'Toole) used that question as a "fourth condition", a question also so described in Coldham at 419. I note that in the passage cited above from Darling Casino, Gaudron and Gummow JJ referred to the decision maker acting in excess of jurisdiction, inter alia, by reason of "the limited terms of a valid law".

Where the decision maker is claimed to have acted in excess of jurisdiction by reason of the limited terms of a valid law, rather than by reason of constitutional limitations upon the exercise of the jurisdiction (e.g. O'Toole), it is the terms of the enactment itself which will indicate whether they impose jurisdictional limitations or restraints upon the exercise of the powers which are "inviolable". In that situation, the expression "inviolable" must mean that the Parliament has intended that those limitations or restraints must be complied with if the decision in question is to be immune from judicial control under s 39B of the Judiciary Act, notwithstanding the provisions of the privative clause. As their Honours said in Darling Casino at 633, the Parliament is not restricted by any constitutional imperative from enacting a privative clause which would ensure that an impugned decision is in fact valid and lawful. It must be noted, however, that their Honours added the qualification that that can be done only "within the limits of the relevant legislative powers".

78                  His Honour went on to consider s 129 and s 131 of the Act and said, at [34] – [35];

“In my judgment, the circumstance is not simply one where a procedural prescription imposed as part of the process of decision-making has not been complied with. It is one where the jurisdictional fact prescribed by the Act, and one which is also the essence of the material upon which the Minister is entitled and obliged to make a decision, has been shown not to exist. The purpose of the decision-making process under s 131 has been frustrated. If I may paraphrase Stephen J in Green v Daniels (1977) 51 ALJR 463 at 465, the respondent has wrongly precluded himself from attaining the requisite state of satisfaction.

In view of my characterisation of the nature of the decision to be made under s 131, and my view that the existence of a response to a valid notice under s 129(1), or at least to a notice which is adequate to elicit a meaningful response to the reasons for the cancellation of the visa, is an essential pre-condition to a valid decision under s 131, I consider that it is not intended by the Act that s 474(1) should preclude the grant of appropriate relief under s 39B of the Judiciary Act in the present circumstances. The decision under challenge is really no decision at all, because the respondent was not empowered in the circumstances to form any satisfaction in terms of s 131(1)(a) or (b). He did not have before him to enliven that power, and to impose the obligation to exercise it, a response to a notice under s 129(1). The absence of such a response is not "a mere defect or irregularity which does not deprive [him] of the power" to make the decision:  Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 per Mason CJ at 180.

79                  In NAAX v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 263, Gyles J considered the operation of s 474 and specifically whether a breach of the requirements of natural justice goes to jurisdiction excess of which can make the decision-maker amenable to the prerogative writs, and therefore not immune from review by this Court upon the proper application of the Hickman conditions.  In NAAX, the Tribunal had rejected the applicants’ claim for protection visas on the basis of a fear of persecution for reasons of political opinion.  The Tribunal had affirmed the refusal of the visas because it did not accept that each of the applicants had been a political activist who had suffered persecution on the basis of political opinion.  In reaching its decision, the Tribunal took into account certain information that had not been disclosed to the applicants or their migration agent.

80                  The applicants argued that, by using undisclosed material to support a result adverse to them, the Tribunal had denied them procedural fairness and had accordingly contravened the rules of natural justice.  In this respect the applicants relied on Minister for Immigration and Multicultural Affairs; Ex parte Miah  (supra).  They argued that a breach of natural justice of the kind which had occurred constituted a jurisdictional error, relying on the High Court decision in Re Refugee Review Tribunal; Ex parte Aala (supra), and contended that relief pursuant to s 39B of the Judiciary Act should follow.  In addition, it was argued that s 474 did not preclude them from the relief sought because jurisdictional error of the kind which they had identified fell within the exceptions to the application of a privative clause like s 474.  In addition, the applicants challenged the constitutional validity of the privative clause.

81                  Gyles J favoured a narrow view of what Gaudron and Gummow JJ in Darling Casino meant by decisions not made “under this Act”.  His Honour said, at [30] – [31];

“Merely because if a privative provision is ignored there would be jurisdictional error such as to ground entitlement to prohibition it does not follow that the privative provision may be ignored and prohibition granted despite it.  To conclude that prohibition will go in all cases of jurisdictional error of the type identified in Craig v South Australia (1995) 184 CLR 163 particularly at 179 and all cases of breach of the rules of natural justice would be to ignore the clear distinction drawn in Hickman and render s 474 and like privative clauses virtually devoid of content (see Zines, Constitutional Aspects of Judicial Review of Administrative Action, (1998) 1 Constitutional Law and Policy Review 50 at footnote 41).  It should be recalled that in Hickman Dixon J (at 615) expressly referred with approval to a passage precisely in point from the judgment of Starke J in Australian Coal & Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161 at 182:

“In my opinion, reg 17 [the privative clause] excludes any appeal whatever from any award or order of the Conciliation Commissioner in relation to industrial disputes referred to him under s 16 of the Industrial Peace Regulations.  Effect can only be given to reg 17 by treating the words, award, order or determination, as meaning acts in fact done by the tribunal in the supposed exercise of the powers entrusted to it.  To confine the meaning of those words to acts done lawfully and within the jurisdiction of the tribunal ignores the clear, distinct and unmistakable intent of the regulation.  Prohibition at common law was the appropriate remedy for restraining inferior Courts from exceeding their jurisdiction, and yet this remedy is withdrawn by the regulation:  See Baxter’s Case;  Morgan v Ryland Bros (Australia) Ltd;  Clancy v Butchers’ Shop Employees Union;  Colonial Bank of Australasia v Willan.”

………

Another way that this issue was put on behalf of the applicants was to submit that if a decision is made without jurisdiction in the wider sense, it is not made “under the Act” as required by s 474(2) of the Act, relying upon the following passage from the judgment of Gaudron and Gummow JJ in Darling Casino Ltd at 635:

“There is one point we should add, because the Court of Appeal appears to have proceeded on a contrary view.  It concerns the content of the phrase in s 155(1), “a decision of the Authority under this Act”.  The phrase is not “under or purporting to be under this Act”.  Section 11 obliges the Authority to have regard to certain matters.  Section 12 forbids the Authority to grant an application unless satisfied of the matters there specified and for that purpose the Authority is to consider the items specified in s 12(2)(a)-(h).  Section 13 contains a definition of “close associate”, a term used in s 12.  Sections 11, 12 and 13 are central to the legislative scheme.  Section 155 cannot fairly be construed as declaring an intention of the legislature that the Authority is empowered and protected in respect of determinations under s 18 reached other than upon satisfaction of the conditions which enliven its power.  Those decisions would not have been made “under this Act”.”

I read this passage as relating to the express requirements of a statute, not to the kind of extended jurisdictional error identified in Craig or to all the common law requirements of affording natural justice.  It is framed in that way.  There is no suggestion that their Honours were intending to cast doubt upon the line of authority in the High Court to which I have just referred.  I should add that a discussion at the hearing about other statutes in which the words “under this Act” have been held to include acts which purported to be done under an Act  was not followed up by the Solicitor General.

82                  Gyles J went on to say, at [32] – [36];

The recognition that Hickman is, at heart, a rule of statutory construction (see Darling Harbour Casino per Gaudron and Gummow JJ at 631) is of no assistance to the applicants in the present case. There is no express provision of the Act inconsistent with s 474(1)which arises in the present case. This point recalls the analysis by Dixon J in Hickman at 616-617:

“It is, of course, quite impossible for the Parliament to give power to any judicial or other authority which goes beyond the subject matter of the legislative power conferred by the Constitution.  The relevant subject matter in the present case is naval and military defence.  It is equally impossible for the legislature to impose limits upon the quasi-judicial authority of a body which it sets up with the intention that any excess of that authority means invalidity, and yet, at the same time, to deprive this Court of authority to restrain the invalid action of the court or body by prohibition.  But where the legislature confers authority subject to limitations, and at the same time enacts such a clause as is contained in reg 17, it becomes a question of interpretation of the whole legislative instrument whether transgression of the limits, so long as done bona fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells invalidity.  In my opinion, the application of these principles to the Regulations means that any decision given by a Local Reference Board which upon its face appears to be within power and is in fact a bona fide attempt to act in the course of its authority, shall not be regarded as invalid.

In considering the interpretation of a legislative instrument containing provisions which would contradict one another if to each were attached the full meaning and implications which considered alone it would have, an attempt should be made to reconcile them.  Further, if there is an opposition between the Constitution and any such provision, it should be resolved by adopting any interpretation of the provision that is fairly open.”

In speaking of s 31 of the Commonwealth Conciliation and Arbitration Act, Isaacs and Rich JJ, in Waterside Workers’ Federation of Australia v Gilchrist, Watt & Sanderson Ltd, expressed views to the effect that s 31, although leaving it to the ordinary courts to apply any appropriate remedy to an excess of jurisdiction by the Arbitration Court before it made an order or award, meant that once the order or award was made that instrument then should be regarded as within jurisdiction, provided that it did not exceed the limits of the Constitution or, presumably, deal with matters to which the Arbitration Court was an entire stranger.  Possibly this view may to too far, but, having expressed it, their Honours proceeded to say that the jurisdiction given by s 75(v) of the Constitution continues to exist “but it needs a proper case for its exercise.  Such a case exists wherever Parliament evinces its intention that curial action shall bind only when certain conditions are satisfied”.  They point out that, if in one provision it is said that certain conditions shall be observed, and in a later provision of the same instrument that, notwithstanding they are not observed, what is done is not to be challenged, there then arises a contradiction, and effect must be given to the whole legislative instrument by a process of reconciliation.

In my opinion, these general principles are sound and are not at variance with what was actually decided in the case of Gilchrist, Watt & Sanderson.  Accordingly, I think that under the Coal Mining Industry Employment Regulations the decisions of a Reference Board should not be considered invalid if they do not upon their face exceed the Board’s authority and if they do amount to a bona fide attempt to exercise the powers of the Board and relate to the subject matter of the Regulations.” (emphasis added)

The same point is lucidly made by Latham CJ and Dixon J in R v Commonwealth Rent Controller;  Ex parte National Mutual Life Association of Australasia Ltd (1947) 75 CLR 361 at 369:

“When Commonwealth legislation confers powers upon an officer a provision such as reg 38 cannot be construed as intended to provide that his powers are absolutely unlimited.  Such a construction would raise questions of the validity of the legislation.  Such a provision cannot help to give effect to any legislation which it is beyond the power of the Commonwealth Parliament to enact.  Further, even where no question of validity arises, the effect of such a provision in a particular case depends upon the construction of the relevant statute taken as a whole.  If a legislature gives certain powers and certain powers only to an authority which it creates, a provision taking away prohibition cannot reasonably be construed to mean that the authority is intended to have unlimited powers in respect of all persons, and in respect of all subject matters, and without observance of any conditions which the legislature has attached to the exercise of the powers.  Such a provision will operate to prevent prohibition going in cases of procedural deficiencies where the authority whose powers are in question is in substance dealing with the matter in respect of which the power is conferred upon it.  But if, upon the construction of the legislation as a whole, it appears that the powers conferred upon the authority are exercisable in certain cases, and definitely that they are not exercisable in other cases, and that any attempt to exercise them was intended to be ineffective, then a provision taking away prohibition will not exclude the jurisdiction of this Court under s 75(v) of the Constitution in a case of the latter description: see R v Hickman;  Ex parte Fox.” (emphasis added)

Indeed, this analysis supplies the correct approach in the present case.  It should be clear that I am considering only that kind of procedural fairness (or lack thereof) which may be involved in the use of the kind of information in question here by the Tribunal.  I am not intending to answer an abstract question as to whether a privative clause can exclude natural justice.  The Act must be construed as it now stands, including s 474 and including the express prescriptive provisions governing the procedure of the Tribunal in Div 3, Div 4 and Div 5 of Pt 7.   In the case of a breach of any of those express provisions, a question of statutory construction would arise as to reconciliation of that provision with s 474.…

… … …

In my opinion, s 474 operates according to its terms, which are inconsistent with the existence of implied duty to afford procedural fairness by supplying information going beyond the requirements of Div 4 of Pt 7 of the Act, no matter upon which theory any such implication would be drawn.  This conclusion is reinforced by the passages from the Explanatory Memorandum and Second Reading Speech to which I have referred.  In my opinion, it is not legitimate to construe the Act on the basis that s 474 did not exist, particularly in relation to a version of the Act which had radically different judicial review provisions, conclude that a duty to afford natural justice existed and then ask whether s 474 takes away the corresponding right.

The course of High Court decisions has established the Hickman exceptions as authoritative and exhaustive.  The principles have been referred to very recently by Gaudron and Gummow JJ in Minister for Immigration & Multicultural Affairs v Bhardwaj [[2002] HCA 11] at [47], with whose reasons in this respect McHugh J agreed, and by Gaudron J in Miah at [102].  Even if teased out in the manner favoured by the authors of Aronson & Dyer, Judicial Review of Administrative Action, 2^nd Ed, at p 691, the exceptions do not include breach of an implied duty to accord procedural fairness of the type that is alleged here.  The remark by Dawson J in O’Toole most naturally relates to bias, as at least some, and perhaps all, examples of bias would negate the bona fides of the decision and so fall within the first Hickman exception.”

83                  In NABE v Minister for Immigration and Multicultural Affairs [2002] FCA 281, Tamberlin J referred to the judgment of McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) in Minister for Immigration and Multicultural Affairs v Yusuf (supra) where, after quoting the passage from Craig v The State of South Australia (1995) 184 CLR 163, their Honours gave this exposition, at 22, of the nature of jurisdictional error;

“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law.  Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute.  In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.  Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”

84                  Tamberlin J went on to say, at [24];

“Several observations are appropriate in relation to the above extract from Yusuf.  The first is that Yusuf was decided before the 2001 amendments to the Act inserting s 474 and the other amendments.  The second is that Craig is cited in Yusuf in relation to the meaning of the expression jurisdictional error under the general law.  The third is the observation by their Honours that there is nothing in the Act to suggest that the Tribunal is given authority to make a decision otherwise than in accordance with the Act.”  (original emphasis)

85                  His Honour went on to consider the Explanatory Memorandum for the Migration Legislation Amendment (Judicial Review) Bill 2001 which contained the provision that is now s 474 and said, at [30];

“Section 474 in terms makes it evident that the decision of the RRT is intended to authoritatively resolve questions of fact and law before it.  That principle is qualified by the authorities to the effect that a privative clause will not apply to prevent judicial review where the decision is unconstitutional or in breach of a specific, express or indispensable precondition to jurisdiction or exercise of power, or where the empowering statute makes it clear that compliance with a condition is essential to the exercise of jurisdiction.  Indeed, Hickman itself is an example of the latter situation in so far as the Court held that the privative clause did not operate to protect the Board’s decision because the activity was not “in the mining industry”, an expression which delineated the area of jurisdiction conferred.  Accordingly, in this case, as a consequence of the 2001 amendments, the generalised statements as to jurisdictional error enunciated in Craig, are not determinative of the present proceedings.”

86                  Hill J in Ratumaiwai v Minister for Immigration and Multicultural Affairs [2002] FCA 311 considered the operation of s 474 in the context of a challenge under s 39B of the Judiciary Act to a decision of the Tribunal.  His Honour concluded that, even if the Tribunal had made an error of law, the error could not have affected the ultimate result.  Despite that conclusion, his Honour went on, at [50] – [51], to express this view of the application of s 474;

“In my view, the question of construction which is raised by s 474 requires the Court to reconcile the broad language of the privative clause with the specific language of the Act, particularly the conferral of jurisdiction (and the imposition of a duty) upon the Tribunal to review a decision.  The obvious legislative purpose (and the Court is required to give effect to the legislative purpose, at least so long as in the present context it is express or arises by necessary implication from the language used), is to expand the validity of decisions made in purported exercise of jurisdiction, so that they are to be treated as validly made, notwithstanding that there may be some error which would otherwise justify the decision being set aside.  On the other hand, the privative clause is not to be interpreted so that a real failure to exercise jurisdiction nevertheless permits the decision to be validated.  The clearest example of such a real failure to exercise jurisdiction is the case where a Tribunal simply fails to address the issue it is required to address, or, while purporting to do so, takes into account some quite irrelevant matter.  In my view, however, the privative clause is not to be ignored so as to permit this Court to treat the decision as invalid merely because the Tribunal has made a wrong finding of fact (that would not be judicial review in any case) or even had proceeded upon a wrong basis in law.  In particular, prohibition may only be invoked where there is jurisdictional error.  Neither error of law, or error of fact are, of themselves, necessarily jurisdictional error.

For my part I am inclined to agree with Gyles J that s 474 would preclude the Court (the question may be different where the High Court is involved, for this would raise the constitutional question) from making an order for prohibition absolute where there had been a denial of natural justice.  In addition to the matters to which his Honour refers in reaching this conclusion there is the fact that the jurisdiction of this Court is limited under s 476 in such a way as to preclude from judicial review the denial of natural justice.  Prior to the amendments in 2001 which, inter alia, introduced s 474 the provisions of s 486 operated to preclude this Court from exercising jurisdiction under the Judiciary Act 1903 (Cth) at all in respect of judicially reviewable decisions.  Thus this Court had no jurisdiction to set aside a decision made in denial of natural justice either by exercising jurisdiction to grant a prerogative writ under s 39B of the Judiciary Act 1903 (Cth) or by judicial review under the provisions of s 476 of the Migration Act 1958 (Cth).  It would be strange if one would attribute to Parliament the intention, while enacting a privative clause which on its face restricts the Court’s jurisdiction, of nevertheless expanding the jurisdiction of this Court to set aside decisions for failure to give procedural fairness in proceedings under the Judiciary Act 1903 (Cth) by granting prohibition, where if the visa applicant had sought judicial review the Court would have no jurisdiction to do so.  On the other hand, there is nothing in s 476 which would prevent the Court from setting aside in judicial review proceedings a decision made in excess of jurisdiction under one or other of the heads of review (eg, error of law) and so there is no reason to believe that Parliament would thus have limited this Court’s power to grant prohibition where there was jurisdictional error. 

87                  In Turcan v Minister for Immigration and Multicultural Affairs [2002] FCA 397 Heerey J said, at [41];

“There seems to me significance in the fact that s 474 was introduced by way of amendment.  It was inserted into an existing legislative scheme containing an extremely complex and highly structured decision making apparatus.  The Act and the Regulations provide for hundreds, if not thousands, of discrete migration decisions.   Many of these decisions have detailed substantive criteria and procedural requirements.  It would be obvious to Parliament that, decision makers being human, errors of fact and law, whether or not capable of being characterised as “jurisdictional”, are likely to be made in such a setting.  Where complaint is made of error, the Act provides for recourse to merits review by the Migration Review Tribunal, the Refugee Review Tribunal or the Administrative Appeals Tribunal.  It seems, therefore, difficult to impute to Parliament an intention to limit the protection of s 474 so that it permits judicial review beyond the Hickman grounds.  In particular, it is unlikely that Parliament intended that a defect in some element of a decision-making process would render the decision one not made “under the Act” and therefore outside s 474, or that some particular features of this detailed legislative scheme were intended to be “inviolable” by the application of some (unstated) test.”

88                  Wilcox J in Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438 discussed the views expressed by Merkel J in Walton v Ruddock, Gyles J in NAAX, Tamberlin J in NABE and Hill J in Ratumaiwai and went on to say, at [63] – [67];

“Whatever the reason for Parliament’s distinction between challenges to primary decisions and challenges to tribunal decisions, it seems to me the 2001 amendments to the Migration Act should be construed as intending that this Court will retain jurisdiction to grant relief, under s 39B of the Judiciary Act, in relation to tribunal decisions, in those cases in which the High Court might grant relief under s 75(v) of the Constitution.  Any other construction, which left the jurisdiction of this Court in non-s 476 cases narrower than that of the High Court under s 75(v) of the Constitution, would defeat the apparent Parliamentary intention to enable this Court (and the Federal Magistrates Court) to assist the High Court in dealing with challenges to tribunal decisions.  After all, Parliament could have entirely abrogated the Migration Act jurisdiction of this Court (and the Federal Magistrates Court) if it had so wished.  Alternatively, it could have expressly limited the grounds available under s39B, as it had done under the legislation repealed on 2 October 2001.

If this is so, there is no scope for a concept of “jurisdictional errors and jurisdictional errors” as Gyles J suggested.  A particular error of law is either a jurisdictional error or it is not.  If it is a jurisdictional error, the High Court may grant relief under s 75(v) of the Constitution; so this Court also has jurisdiction to grant relief, under s 39B(1) of the Judiciary Act.  If the error is not jurisdictional, s 75(v) relief is unavailable; the exception to s 474 implied by the existence of Division 2 of Part 8 of the Migration Act has no application and s 474 excludes relief.

That leaves the question:  what is a jurisdictional error?  This Court must look to the High Court to provide the answer.  The High Court has addressed the question in two recent cases, Craig and Yusuf.  I see no reason for rejecting the guidance those cases provide.  With respect to Tamberlin J, the enactment of the new s 474 provides no justification for that course.  As I have sought to explain, the 2001 amendments to Part 8 of that Act recognise the exception to the principle embodied in s 474 that is forced upon Parliament (at least insofar as the High Court is concerned) by the existence of s 75(v) of the Constitution.

Tamberlin J attached significance to the reference made by the Minister, in the Explanatory Memorandum for the 2001 amendments, to the “Hickman conditions”; that is, the three circumstances identified by Dixon J in the proviso emphasised in para 46 above.  However, as with any case, what is important about Hickman is its underlying rationale, the principle it enunciates; not the circumstances under which that principle will provide a particular result.  If the Minister had wished to propose legislation that confined the jurisdiction of this Court to the three circumstances mentioned by Dixon J, he could have done so.

Application of more recent decisions of the High Court may mean that court intervention is now available in circumstances wider than those identified by Dixon J in Hickman.  If so, that is the effect of the development of the law over the intervening 57 years.  It is not a reason for refusing to apply the more recent decisions. While it is certainly correct, as Gyles J pointed out in NAAX at para 29, that Dixon J was aware that prerogative writs are available in cases of constructive failure to exercise jurisdiction, it can hardly be denied that the rules of administrative law have developed significantly since 1945, including in relation to constructive failure to exercise jurisdiction”

89                  In NABM v Minister for Immigration and Multicultural Affairs [2002] FCA 335 Beaumont J, at [60], agreed with Gyles J in NAAX that there “is no scope for reading into the provisions of Part 7 of the Act an implied duty of procedural fairness, breach of which can provide a basis for review on the grounds of jurisdictional error”.  His Honour rejected the applicant’s claim that the Tribunal had failed to comply with the provisions of the Act and did not, in terms, deal with the application of the privative clause to a breach of a specific statutory provision.

90                  In NACT v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 618, Whitlam J found on the facts that the Tribunal had not made an error of law.  His Honour went on to make, obiter, at [10] – [11], these observations on the application of the privative clause;

“However, even if I were wrong on the question of jurisdictional error, it seems to me, for the reasons given by Tamberlin J in NABE v Minister for Immigration & Multicultural Affairs, no review is available in this Court.  The principles enunciated by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615 may be, and I am prepared to assume are, available to ground jurisdiction in this Court under s 39B of the Judiciary Act 1903 to review decisions of Tribunal under Pt 7 of the Act, but there is no suggestion that those principles have been brought into play in this case.  I need not restate what was said by Tamberlin J in NABE v Minister for Immigration & Multicultural Affairs about the content of the so-called Hickman principles or how they may be invoked.

The difference between Wilcox J and Tamberlin J seems to be succinctly stated in how Tamberlin J approached the question of the reach of s 474 in [27] of his reasons and what Wilcox J said in [65] of his reasons.  For my part I respectfully agree with the approach of Tamberlin J as subsequently applied by Beaumont J.  It is not a question, with respect, of rejecting the guidance provided by the High Court in Craig v State of South Australia (1995) 184 CLR 163 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.  Rather, in my opinion it is a question of interpreting what it is that the Act requires in terms by s 474.  I agree with Tamberlin J that s 474 makes it evident that the decision of the Tribunal is intended authoritatively to resolve questions of fact and law before it.”

91                  In a judgment published on the morning of the hearing of the present application, Finkelstein J in Kwan v Minister for Immigration and Multicultural Affairs [2002] FCA 498 considered an application for a writ of prohibition to prevent the Minister from acting upon the Tribunal’s decision and for a writ of certiorari to quash the decision affirming the refusal of a Student (Temporary) (Class TU) visa.  The issue before the Court in Kwan was whether the Tribunal had fallen into error in its interpretation of the conditions that apply to a grant of that type of visa as a result of amendments introduced on 21 December 2000 by the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth).  Finkelstein J found that the Tribunal had fallen into error in assuming that the new condition applied to the grant of the applicant’s visa at the time of the grant whereas the applicant was only required to satisfy the new condition from the date when his previous visa expired.  This led his Honour to consider the operation of the privative clause.  His Honour said, at [12];

“I can dispose of this case by applying the principle that a privative clause such as is found in s 474(1) is not effective to oust prerogative relief for what is sometimes referred to as narrow jurisdictional error.  As to the inability of a privative clause to oust this court’s jurisdiction in the case of narrow jurisdictional error see Hockey v Yelland (1984) 157 CLR 124, 130 per Gibbs CJ (“[A] provision that a decision shall be final does not prevent the issue of certiorari for excess of jurisdiction or error of law on the face of the record, and in my opinion the addition of the words ‘and conclusive’ does not have that effect”); Public Service Association (SA) v Federated Clerks’ Union of Australia (1991) 173 CLR 132, 141 per Brennan J (“[T]his Court construes general privative clauses as impliedly exempting certiorari for jurisdictional error from the ouster of supervisory jurisdiction”), 160 per Dawson and Gaudron JJ (“[A] clause which is expressed only in general terms may be construed so as to preserve the ordinary jurisdiction of a superior court to grant relief by way of the prerogative writs of mandamus or prohibition in the case of jurisdictional error constituted by failure to exercise jurisdiction or by an act in excess of jurisdiction”); Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602, 633-634, per Gaudron and Gummow JJ (“[A] clause which merely provides that a decision is to be final and conclusive is construed as not excluding certiorari for error of law on the face of the record.  So, too, a clause which provides only that a decision may not be called into question in a court of law is construed as not excluding review on the ground that the decision involved jurisdictional error”).

The meaning of jurisdictional error in the sense now under consideration was explained in Craig v State of South Australia (1995) 184 CLR 163.  There the High Court said (at 177-178) that one way in which an administrative decision maker may fall into jurisdictional error is by disregarding a matter which it was required to take into account in deciding the case.  Whether or not Mr Kwan satisfied the original condition may be such a matter.  Another way a decision-maker may fall into jurisdictional error is if he misconceives the nature of the function which he is performing or the extent of his powers in the circumstances of the particular case.  This is precisely what occurred when the tribunal considered Mr Kwan’s case.  It applied the new condition as if Mr Kwan’s last visa had always been subject to it, even though the condition, in its practical operation, had applied to him for only ten days. 

I do not think that the conclusion I have reached is directly inconsistent with NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263, a case which concerned the failure by the tribunal to comply with the rules of natural justice.  That is not to suggest that I agree with all that Gyles J said, especially as regards whether a privative clause will protect decisions that suffer from jurisdictional error.  Prior to 1969 there was a distinction drawn between what some lawyers referred to as “narrow jurisdictional error” and other errors of law in relation to an act done by an administrative body the doing of which was within its general power but which was done in error.  “’Jurisdiction’ in the narrow original sense” (here I use the language of Lord Reid in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 171) involved a serious or manifest error of law and included errors such as the following:  giving a decision in bad faith, making a decision which the decision maker had no power to make, failing to accord natural justice, refusing to take into account something which the decision maker was required to take into account, basing his decision on something the decision maker was not permitted to take into account and situations where the decision maker has, as in this case, “in perfect good faith…misconstrued the provisions giving [him] power to act so that [he] failed to deal with the question remitted to [him] and decided some question which was not remitted to [him]”:  Anisminic at 171. 

With few exceptions, purported decisions that suffer from narrow jurisdictional error are not decisions at all: see generally Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117.  Subject to an important qualification, it was only in respect of that kind of error that prerogative relief would go, until Anisminic extended the meaning of jurisdictional error for which prerogative relief was available to all errors of law, so that now, at least in England, the expression “jurisdictional error” no longer has relevance in this context.  Anisminic is regarded as a decision of fundamental importance.  The Lord Chief Justice, Lord Bingham of Cornhill referred to it as one of the “two decisions which, more than any other, showed that the courts were willing once again to recognise and discharge their historic responsibilities”:  see his article “The New Despotism”, Israel Law Review, Vol 33, No 2, 169 at p. 189.  The examples of jurisdictional error given by the High Court in Craig in the passage to which I referred earlier concern errors of “jurisdiction in the narrow original sense”.

One reason that moved Gyles J to conclude that purported decisions flawed by jurisdictional error could be rendered effective by a general privative clause was that to hold otherwise would leave “privative clauses virtually devoid of content”:  NAAX at par 30.  This approach ignores the fact that the remedies of certiorari and prohibition were developed by the King’s Bench to quash, or prevent the enforcement of, decisions which suffered from defects of form on the record; that is for error on the face:  Holdsworth “History of English Law” vol VI, 112, 263 and vol X, 115; R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338.  It was not until much later that the remedies were used in relation to decisions that suffered from excess of jurisdiction.  If a general privative clause is confined to “prevent prohibition going in cases of procedural deficiencies” (R v Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Ltd (1947) 75 CLR 361, 369 per Latham CJ and Dixon J, a case upon which Gyles J relied), that is, if the privative clause is confined to errors of law on the face of the record, it can hardly be said that the clause is given virtually no operation.

I should also make passing reference to Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438.  In that case, which was also concerned with a decision of the tribunal, Wilcox J said “[a] particular error of law is either a jurisdictional error or it is not.  If it is a jurisdictional error, the High Court may grant relief under s 75(v) of the Constitution; so this Court also has jurisdiction to grant relief, under s 39B(1) of the Judiciary Act.  If the error is not jurisdictional, s 75(v) relief is unavailable”.  I accept that it might be necessary to retain the distinction between an error of law and a jurisdictional error of law when considering the effect of a privative clause, as the High Court has done in the cases to which I have referred.  Perhaps that is the only point that Wilcox J was making.  If, however, Wilcox J was expressing the view that in Australia there should still be maintained the distinction between narrow jurisdictional error of law in respect of which judicial review will be granted, and other errors of law, where judicial review is not available, I am unable to agree with him.  For the reasons I gave in Edwards v Giudice (1999) 94 FCR 561, whenever an administrative decision maker commits an error of law his decision should be amenable to review, unless that right is removed by a lawful enactment.”

92                  In Awan v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 594, the reasons for which were published after the hearing of the present case, North J considered an application to review a decision of the Tribunal affirming a decision of a delegate of the Minister to refuse the applicant a student visa – subclass 560.  The applicant in that case was unrepresented and the Court had some difficulty in identifying the grounds upon which his application was based.  For present purposes it suffices to note that one of the issues before the Court was whether the Tribunal had contravened s 359A(1) of the Act and, if so, whether that afforded the applicant a remedy under the Act. 

93                  North J held that the Tribunal had acted in breach of s 359A(1) by failing to give to the applicant particulars of information which it considered would be part of the reason for affirming the decision of the delegate of the Minister, failing to explain to the applicant that the information was inconsistent with evidence given to the Tribunal and failing to invite the applicant to comment on the information.  His Honour went on to consider the consequences of a breach of s 359A(1) in light of the privative clause.

94                  In doing so, he conducted an extensive review of the relevant authorities from Hickman onwards, and considered the approach of the courts, including the High Court in Aala and Miah, to breaches of the common law analogous to the requirements contained in s 359A(1).  His Honour concluded, at [149] that it followed from the decision of the majority in Miah that the rules of natural justice are presumed to apply unless expressly and clearly excluded by statute.  He observed, at [150];

“In NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263Gyles J expressed the view, at par 26, that Aala was neutral on the question of the application of Hickman because, in the former case, there was no question of the operation of a privative clause in contention.  That approach, however, does not give sufficient significance to the fact that there is some overlap in the relevant questions in both cases.  In determining whether prohibition lies, the Court must determine the jurisdiction of the decision maker, and then decide whether the action of the decision maker was taken in excess of that jurisdiction.  The Court must decide what are the limits on the power of the decision maker.  In determining whether a privative clause operates, the Court must determine the limits on the power of the decision maker.  It is only after those limits have been defined that the operation of the privative clause can be ascertained.  Thus, the task of identifying the limits of the jurisdiction of the decision maker are common to both exercises.  It is therefore significant, even though not determinative, that the failure to accord procedural fairness has been held by the High Court to be an act beyond the jurisdiction of the decision maker for the purpose of the grant of prohibition.  If the obligation to accord procedural fairness is, as Hayne J described it in Aala “a limitation on the power to decide”, it bears that character for all purposes.

Gyles J expressly left open the operation of s 474 where, as in this case, there is a breach of an express prescriptive provision of the statute governing the procedure of the Tribunal.  I agree with his Honour, and have approached the question on the basis he suggests in par 34, as follows:

“In the case of a breach of any of those express provisions, a question of statutory construction would arise as to reconciliation of that provision with s 474.” ”

95                  North J went on to say, at [161] – [162];

“Section 359A(1) mirrors the particular common law obligation enforced in Aala, namely the duty of an administrative decision maker to give adverse information and an opportunity to comment to an applicant before it.  The fact that a breach of such a requirement is regarded as an excess of jurisdiction for the purpose of the grant of prohibition does not necessarily mean that the same breach falls outside the operation of a privative clause.  However, the fundamental nature of the requirement bears upon the likelihood that a breach was intended to carry a remedy.  The nature of the obligation, as explained in Aala and Miah, albeit for a different purpose, and as recognised in the international jurisprudence referred to above, suggests that a decision made in breach of that obligation was not intended to be valid.  If the failure to have a quorum in Proctor was not intended to lead to a valid decision, it is difficult to imagine that the breach of s359A(1) was not intended to lead to invalidity.

It is the basic nature of the common law obligation to accord procedural fairness which means that it applies to a decision made under statute unless expressly and clearly excluded.  It follows that where the same obligation is found in a statute it should be presumed that, absent an unmistakable intention to the contrary, a decision made in breach of the obligation is an act of the decision maker taken outside jurisdiction.  The nature of the obligation is so fundamental that compliance is a prerequisite to a valid decision.”

96                  His Honour later observed, at [167], that the context in which s 359A(1) appears in the Act is central to assessing the significance of the right given by the section and the intended consequence of a breach.  After reviewing the nature of the provision in the context of the surrounding provisions of the Act, his Honour found that compliance with s 359A(1) was a pre-condition to determining a review.  In reaching that conclusion, his Honour said, at [170] and [173];

“The outcome of the process provided by these provisions is a reasoned decision based on an analysis of material before the Tribunal.  The provisions contemplate an explanation of the decision making process similar to the outcome expected in judicial proceedings.  However, the process which is prescribed is very different to ordinary judicial proceedings.  There is no provision for a contradictor before the Tribunal.  The applicant is limited in the way such a person may present a case.  An applicant is not entitled to legal or other assistance at the hearing except in exceptional circumstances.  The Tribunal is given an inquisitorial function.  It is entitled to seek information for itself, and has a wide discretion as to the manner in which the material is to be provided to the Tribunal.  In this context the obligation of the Tribunal to permit the applicant an opportunity to comment on adverse personal information can be seen as essential to the fairness of the process provided by the statute. 

… … …

Finally, it is relevant to the consequences flowing from a breach of the duty provided for in s 359A(1) to note that the hearing to which the duty attaches is the final merits review provided for by the statute.  The applicant has no other opportunity to answer adverse material.  That contextual factor again supports the conclusion that the legislature did not intend that the decision maker had power to make a valid decision without observing the requirements of s 359A(1).

97                  His Honour noted that Heerey J in Turcan v Minister for Immigration and Multicultural Affairs (supra)may have expressed the opposite view and quoted the extract from that judgment which is reproduced at [87] above.  North J also pointed out that Heerey J had not been concerned with the particular statutory provisions which arose for consideration in Awan.  His Honour went on to express the view that the statutory context of s 359A(1) points to the conclusion that compliance with the section is a precondition for the exercise of the Tribunal’s power to determine a review.

98                  In SBBK v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 565, Tamberlin J made a finding on the facts of that case that the Tribunal had committed a fundamental error in failing to address a central question of whether the applicant was a member of a social group.  His Honour went on to say, at [44] – [46];

“In my view, the failure to address these essential questions comes within the exceptions to the principles laid down in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616 ff.  See also R v Coldham; Ex parte Australian Workers Union (1983) 153 CLR 297 and Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602.  It is clear from these and other authorities that a privative clause will not usually protect a decision that exceeds constitutional limits, or a decision that is made in breach of a specific, express or indispensable precondition to jurisdiction or exercise of power, nor will the privative clause serve to validate a decision where there has not been a compliance with a condition that is essential to the exercise of jurisdiction in accordance with statutory terms.  These principles underpin the enactment of s 474 so that, in my view, the protection afforded by s 474 of the Act does not apply in the present case.

The RRT by s 415, for the purposes of the review exercise carried out by it, can exercise all the powers and duties that are conferred by the Act on the Minister.

One essential precondition, (among others), to the performance by the Minister of the duty under s 65 is to consider the matters set out in s 65(1)(a)(i)-(iv).  If the Minister is not satisfied of the existence of any of these matters then the visa must be refused.  Before a decision can be made under this section, it is necessary that the Minister should consider whether the applicant is a “refugee” as defined by the Convention.  This in turn requires a consideration of whether the applicant is a member of a particular social group who is liable, by reason of that membership, to be persecuted.  Unless this is considered and a determination is made whether an applicant is a member of a relevant particular social group, it is not possible for the Minister to determine the central question of possible persecution by reason of such membership.”

99                  In SAAP v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2002] FCA 577, Mansfield J considered an argument that the Tribunal had contravened  the common law rules of natural justice and had failed to comply with s 424A of the Act.  His Honour held that there had been no breach of the common law rules of natural justice and said, at [43] – [44];

“In the circumstances, assuming the rules of procedural fairness at common law apply to the decision-making processes of the Tribunal (see Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 (Miah), I do not consider that those common law rules were breached by the Tribunal in this instance.  The applicant had an opportunity to put her case, and was aware of the matters which were of significance to her case which emerged from the evidence of her elder daughter.  She also had an opportunity of responding to those matters, partly by what was put to her during the hearing and partly by being able to make submissions about those matters following the hearing:  see e.g. Miah at [99] per Gaudron J and the cases cited by her Honour.

I do not therefore have to address the question whether a breach of the common law rules of procedural fairness of the nature alleged gives rise to jurisdictional error as discussed in Craig v South Australia (1995) 184 CLR 163 (Craig) and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 (Yusuf) so as to enliven the Court’s power to set aside the Tribunal’s decision under s 39B of the Judiciary Act.  Nor do I have to address the question whether that power could be exercised in the face of s 474(1) of the Act.  In NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263, Gyles J decided that it could not, but Wilcox J in Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438 declined to follow that decision.  In that latter case, Wilcox J took the view at [63-64] that, upon the proper construction of the Act, jurisdictional error as explained by the High Court in Craig and in Yusuf empowers the Court to grant relief under s 39B of the Judiciary Act notwithstanding s 474(1) of the Act.

100               His Honour went on to hold that the Tribunal had not complied with s 424A of the Act and said, at [50] – [51];

“In this matter, I do not consider that the Tribunal’s error is one in respect of which I would grant relief under s 39B of the Judiciary Act in any event.  The grant of such relief is discretionary:  Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; Zhang v Minister for Immigration Local Government and Ethnic Affairs (1993) 45 FCR 384; Aala at 91-92.  I have found that, in substance, the objective of s 424A has been achieved.  That is, I have found that the applicant has been provided with the degree of procedural fairness which the legislature intended.  The only missing feature is that she was notified of the information adverse to her claim and given the opportunity to comment upon it in a manner different from that which s 424A prescribed.  But the objective of the manner of notification in s 424A is to ensure that that notice and that opportunity were given.  Where that objective has been fulfilled, I regard the complaint of the applicant as a technical one only so that the particular breach has not deprived her of any benefit which she was intended to receive.  In the circumstances, I would decline to make any order under s 39B of the Judiciary Act even if it were not necessary to address s 474(1) of the Act.

I do not, therefore, need to finally decide whether the particular breach of s 424A amounted to jurisdictional error on the part of the Tribunal.  But for s 474(1) of the Act, it is an apparently attractive proposition that each of the procedural prescriptions in Div 4 of Pt 7 of the Act is an essential precondition to the exercise of the decision-making power (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93-100]) or that each imposes “imperative duties” (an expression used in Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602 per Gaudron and Gummow JJ at 632), so that contravention results in reviewable jurisdictional error.   That was the approach adopted by Wilcox J in Boakye-Danquah.  The particular contravention of s 424A in this matter might however suggest that it is necessary to look beyond the section itself to the nature of the particular procedural irregularity before categorising the contravention as a jurisdictional error.  It is also appropriate to note the respondent’s contention that the effect of s 474(1) of the Act is to broaden the lawful authority of the Tribunal so that its jurisdiction is limited only by the provisions in the Hickman principles:  The Queen v Coldham; Ex parte The Australian Workers’ Union (1982) 153 CLR 415 per Mason ACJ and Brennan J at 418-419.  The decision of Tamberlin J in NABE v Minister for Immigration & Multicultural Affairs [2002] FCA 281 would seem to support that contention.  As I have said, it is not necessary to finally resolve those issues as I would decline relief in any event.”

Application to the present case

101               Common to the authorities I have just reviewed is a recognition of the need to construe s 474 to determine whether it was intended to make unreviewable a decision of the Tribunal which has been vitiated by an infraction of the common law rules of natural justice.  The application of those rules to the procedures of a tribunal or other decision-maker can be displaced by express statutory enactment or necessary implication;  for a discussion in the context of the Act of whether such a displacement had occurred, see eg. Kioa v West (1985) 159 CLR 550 per Mason J, at 585. 

102               However, if the rules of natural justice retain their application to a particular tribunal or decision-maker, as the High Court in Aala held that they do in relation to the Tribunal, the question remains whether those rules impose on the Tribunal “imperative duties” or “inviolable limitations or restraints” in the sense explained in the extract from Darling Harbour quoted at [72] above.  As Gaudron and Gummow JJ implied in that case, the duties, limitations or restraints may be inviolable by force of some provision of the Constitution.  That proposition was expressly stated by Gleeson CJ and McHugh J in Abebe v The Commonwealth (1999) 197 CLR 510, at 536.  Otherwise, whether the rules of natural justice have that character turns on the proper construction of the grant of decision-making power.

103               I have been unable to discern anything in the Act which indicates that compliance with such of the rules of natural justice as apply to its procedures was intended to be a prerequisite to a valid determination by the Tribunal.  On the other hand, several considerations point to the contrary construction.

104               I agree with the view expressed by Hill J in the extract from Ratumaiwai quoted at [86] of these reasons, that it would be curious to impute to the legislature an intention to confer on this Court a power to review, under s 39B of the Judiciary Act, decisions of the Tribunal vitiated by denial of natural justice which power had been expressly abrogated by s 476(2) as previously in force.  That view seems to have been shared by Heerey J when he formulated the reasons in Turcan which are quoted at [87] above. 

105               Just as the content of the rules of natural justice will not necessarily be uniform (Salemi v MacKellar [No 2] (1977) 137 CLR 445 and the cases there cited);  so the effect in a given case of a breach of one of that body of rules is variable.  I am therefore not persuaded that every breach of the rules of natural justice is of such a character that the decision of the Tribunal which committed it is a nullity.  It is true that the principle formulated by Lord Reid in Anisminic in the passage cited by Finkelstein J in the extract quoted at [91] above, is broad enough to require that result.  However, in its context, I consider that his Lordship’s reference to “failing to accord natural justice” is to a departure from the rules so gross or fundamental as to be equated with not exercising the power bona fide.  In that sense, the failure can be brought within the first of the Hickman conditions.

106               By contrast, the breach of the rules of natural justice may be a mere “procedural deficiency” to use the expression favoured by Latham CJ and Dixon J in R v Commonwealth Rent Controller;  Ex parte National Mutual Life Association of Australia (1947) 75 CLR 361, at 369 where their Honours indicated that a privative clause;

“… …will operate to prevent prohibition going in cases of procedural deficiencies where the authority whose powers are in question is in substance dealing with the matter in respect of which power is conferred upon it.”

107               On the view I take of it, the procedural error which I have imputed to the Tribunal was made while it was dealing, in substance, with the applicant’s application for review of the refusal of the visa, that being the matter which the Tribunal was empowered by the Act to determine.  This analysis does not contradict Wilcox J’s proposition in Boakye-Danquah quoted at [88] above that a particular error of law is either a jurisdictional error or it is not.  It merely acknowledges that not all infractions of the rules of natural justice are so gross that it can be said that the decision-maker is not exercising at all the jurisdiction conferred upon him or her.  It is also consistent with the approach which Mansfield J suggested, in the passage from SAAP quoted at [100] of these reasons, should be taken to claimed contraventions of s 424A by looking “to the nature of the particular procedural irregularity before categorising the contravention as a jurisdictional error.”

Conclusion

108               For the reasons which I have endeavoured to explain, I have concluded that, because of the operation of s 474 of the Act, the procedural error which I have imputed to the Tribunal does not afford the applicant any right of review or other relief in this or any other court.  Accordingly, the application must be dismissed with costs.

Associate:

Dated:              25 June 2002