the submissions
16 Mr McCarthy QC, who appeared with Mr Wilson for the applicant, argued that the RRT had acted in excess of its jurisdiction. The applicant's case was put in several ways, although the contentions overlapped to some extent.
17 First, the applicant submitted that the RRT had breached the rules of natural justice, or its duty to inquire into the applicant's case, in two respects.
· The RRT was bound to inquire into the reasons behind the making of the threats in order to determine the applicant's claim properly. In particular, the RRT was bound to inquire, or inquire further, as to what was actually said by those making threats to the applicant. According to Mr McCarthy, the RRT was obliged to act as an "inquisitor" and thus it was bound to explore the applicant's claim that she had received threats associated with the employees' or former employees' desire to form a union at the applicant's workplace.
· Mr McCarthy also argued that the RRT was obliged, as a matter of procedural fairness, to advise or warn the applicant that it was considering rejecting her claim on the ground that the threats she had received were motivated simply by a grudge on the part of the dismissed employees and had nothing to do with any political opinion that might have been imputed to her. The failure to warn the applicant, so it was argued, deprived her of the opportunity to amplify her evidence and identify more precisely the threats that had been made against her. Mr McCarthy argued that the obligation arose, or at least was supported, by the fact that the applicant was unrepresented at the hearing and that the approach ultimately taken by the RRT was different from that taken by the delegate.
18 Secondly, the applicant submitted that the RRT should have assessed the applicant's claims on the basis that it may have been mistaken in its finding that the threats had been made simply by reason of the grudges borne by the three dismissed employees (that is, in the language used in some of the authorities the RRT had to ask itself "What if I am wrong?"). Mr McCarthy supported this submission by contending that there was insufficient material to support the RRT's finding. While the applicant did not seem to attack the RRT's decision on the ground that its finding was unsupported by any evidence (the grounds of review did not identify that as a discrete ground), the absence of evidence was said to make it impossible for the RRT to have reached the conclusion it did with any degree of confidence.
19 Thirdly, the applicant argued that the RRT had misdirected itself. Mr McCarthy acknowledged that the RRT had made a finding that the applicant's opposition to the unionisation of her workplace had played no part in the threats made by the three former employees. But, so it was argued, the RRT's determination that the dismissal of the employees had severed any causal connection between the applicant's opposition to the union and the motivation for the threats demonstrated that the RRT had failed to apply itself to the critical question, namely whether those threatening the applicant were motivated, at least in part, by her opposition to the union. It had therefore failed to perform its statutory duty under s 414 of the Migration Act, which requires the RRT to "review" the delegate's decision.
20 The applicant's written submissions did not address the effect of s 474 of the Migration Act. The Minister's written submissions, however, pointed out that s 474(1) is in substantially the same form as the privative clause considered in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. Dixon J in Hickman had summarised the effect of such clauses as follows (at 614-615):
"The particular regulation is expressed in a manner that has grown familiar. Both under Commonwealth law, and in jurisdictions where there is a unitary Constitution, the interpretation of provisions of the general nature of [the privative clause] is well established. They are not interpreted as meaning to set at large the courts or other judicial bodies to whose decision they relate. Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body."
21 According to Mr Lloyd, who appeared for the Minister, the effect of a privative clause in the form of s 474(1) of the Migration Act is not to oust the jurisdiction of the Courts to review migration decisions (an approach which might fall foul of s 75(v) of the Constitution). Rather, s 474(1) broadens the lawful authority of the decision-maker (in this case the RRT) so that its jurisdiction is constrained only by the three "Hickman conditions", viz
· the decision-maker is required to have made a bona fide attempt to exercise its power;
· the decision relates to the subject matter of the legislation; and
· the decision is reasonably capable of reference to the power given by the decision-maker.
22 Mr Lloyd submitted that the applicant's case had to fail as there had been no attempt to establish on her behalf non-compliance with any of the Hickman conditions. Rather, the applicant's case had simply assumed that this Court has jurisdiction under s 39B of the Judiciary Act to entertain applications for relief where the RRT has committed jurisdictional error. According to Mr Lloyd, that assumption was wrong.
23 Mr McCarthy addressed the effect of the privative clause in his oral submissions. In essence, he adopted, without elaboration, an argument referred to by Merkel J in Walton v Ruddock [2001] FCA 1839. In that case, Merkel J did not find it necessary to resolve the question of whether s 474(1) of the Migration Act operates to prevent judicial review of decisions made in breach of the rules of natural justice, a point he regarded as "not altogether clear" (at [36]). Merkel J pointed out that there have been statements in the High Court suggesting that, if the rules of natural justice have not been excluded by statute, Parliament cannot validly exclude the jurisdiction of the High Court to grant relief under s 75(v) of the Constitution in respect of the breach: see, for example, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238, at 261, per Gaudron J; Re Refugee Review Tribunal; Ex parte HB (2001) 179 ALR 513, at 515-516, per Kirby J. His Honour considered that, since Part 8 of the Migration Act was silent on the question of compliance or non-compliance with the rules of natural justice, there might be obstacles in the path of an argument that the section provides a clear legislative intention to abrogate or exclude the rules of natural justice. There were therefore "grounds for contending that s 474 does not prevent the review of decisions in respect of visas on that ground": at [37]. Mr McCarthy adopted the argument Merkel J indicated might be well-founded.
24 Merkel J in Walton v Ruddock also thought an issue might arise as to whether an invalid decision purportedly made under an enactment is a decision made "under" the enactment, within the meaning of provisions such as s 474(2) of the Migration Act. His Honour regarded this as ultimately a matter of construction: at [41]; cf Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 167, at [30] (where Mansfield J rejected the view that a decision made "under" the Migration Act does not include a purported decision). Again, Mr McCarthy adopted the argument that Merkel J thought might be available.
25 In response to the applicant's submissions on the substance of the application for judicial review, Mr Lloyd submitted that, even if the Court retained jurisdiction and power to grant relief in respect of any jurisdictional error committed by the RRT, none had been demonstrated in the present case. The RRT was under no duty to inquire further than the claims made by the applicant. In any event, even if there was a duty on the RRT to inquire further in some circumstances, the RRT had not breached that duty since it had asked the questions on the significant issues. The RRT had considered the applicant's claim and made findings adverse to her. There was no obligation on the RRT to tell the applicant that it was contemplating finding against her on the ground that her own evidence did not satisfy it that she had a well-founded fear of persecution on a Convention ground. Nor was there anything in the RRT's reasons to attract the so-called "what if I am wrong" principle.