NAAT of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 323 (24 October 2002)

Last Updated: 29 October 2002

FEDERAL COURT OF AUSTRALIA

NAAT of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 323

MIGRATION - appeal by Philippines national against refusal of protection visa by Tribunal below - appellant manager of restaurant in Philippines - claimed fear of persecution at hands of former employees by reason of her opposition to union activity in workplace - Tribunal found threats received by appellant not due to anti-union views but to her dismissal of three employees for stealing - application for review based inter alia on Tribunal's failure to discharge "duty to enquire" and on failure to consider that findings as to motives for threats of former employees might be wrong - primary judge found no jurisdictional error - Tribunal entitled to form its view on the evidence - appeal to Full Court - substantially same submissions propounded as before primary judge - consideration of nature and extent of "duty to enquire" - whether Tribunal required to consider whether was wrong in fact finding - observations as to function of appellate review - appeal dismissed.

Migration Act 1958 (Cth) subs 36(2), Part 8, ss 374, 414, 420(2)(b)

Judiciary Act 1903 (Cth) subs 39B(1)

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

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

Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 cited

Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38 cited

Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 94 FCR 28 cited

Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 cited

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57; (2001) 179 ALR 238 cited

Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 followed

Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470 distinguished

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 cited

Branir Pty Ltd v Owston Nominees (No. 2) Pty Ltd [2001] FCA 1833 applied

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 applied

R v Hickman; Ex parte Fox & Clinton [1945] HCA 53; (1945) 70 CLR 598 cited

O'Toole v Charles David Pty Ltd [1991] HCA 14; (1991) 171 CLR 232 cited

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 cited

NAAT OF 2001 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 301 OF 2002

MADGWICK, MERKEL & CONTI JJ

24 OCTOBER 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 301 OF 2002

BETWEEN:	NAAT OF 2001 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK, MERKEL & CONTI JJ
DATE OF ORDER:	24 OCTOBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N301 of 2002

BETWEEN:	NAAT of 2001 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK, MERKEL & CONTI JJ
DATE:	24 OCTOBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MADGWICK J

1 I have had the advantage of reading Conti J's reasons. Like him, I do not feel that in this case the Tribunal member was obliged to inquire further than she did. Further, the inferences she drew are, I agree, legally available. The learned primary judge did not err.

2 The appeal should be dismissed with costs.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated: 24 October 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 301 OF 2002

BETWEEN:	NAAT OF 2001 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK, MERKEL & CONTI JJ
DATE:	24 OCTOBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MERKEL J

3 I agree with the orders proposed by Conti J and with the reasons his Honour has given for making those orders.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Associate:

Dated: 24 October 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 301 OF 2002

BETWEEN:	NAAT OF 2001 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK, MERKEL & CONTI JJ
DATE:	24 OCTOBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

CONTI J

4 This is an appeal against the decision of a judge of this Court made on 27 March 2002 (reported [2002] FCA 332), whereby his Honour dismissed the appellant's application for review of the decision of the Refugee Review Tribunal ("the Tribunal") made on 6 September 2001 to the effect that the appellant did not satisfy the criterion set out in subs 36(2) of the Migration Act (1958) (Cth) ("the Act"). The Tribunal decision affirmed the earlier decision of the Minister's delegate made on 3 April 2001 to refuse to grant to the appellant a protection visa. The relief sought by the appellant included a writ of prohibition preventing the Minister from taking any steps to give effect to the decision, pursuant to subs 39B(1) of the Judiciary Act 1903 (Cth).

5 The appellant's application for review having been filed in this Court on 25 October 2001, it is common ground that the proceedings have been governed from the outset by the provisions of Part 8 of the Act, as inserted by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). The key provision of Part 8 is s 474, which contains a privative clause. It is convenient to hereafter refer to the appellant as the applicant, in the context of my discussion of the proceedings prior to the present appeal.

Factual background including the delegate's decision

6 In the applicant's protection visa application, her claims for refugee status were stated to be made on the following factual basis:

* She had left the Philippines because her life was in danger from various employees and former employees of the company for whom she had been employed in Manila.

* She had been so employed as a restaurant manager with responsibility for 20 to 25 workers, and one of her functions was the hiring and dismissal of employees, and the imposition of discipline against "erring" employees.

* Trade union members had spoken to employees of the restaurant on the prospect of forming a union, and the applicant had been assigned by management the function of discouraging the formation of a union, and instead the introduction of contracts of employment.

* The applicant was adverse to the formation of a union, because of the small size of the corporate ownership of the restaurant, and the harm which a unionised workforce in that context would do to the employer.

* Due to the applicant's anti-union views, which the employees of the restaurant apparently became aware of, she was accused by certain employees of "bias, discrimination, injustice, unfairness, and narrow mindedness". The applicant received telephone threats at work and at home.

* After the applicant had dismissed three employees for "stealing the company's cash sales for the day", the threats allegedly "became more real", the dismissed employees having been union members at their previous places of employment.

* Those three dismissed employees had transferred to the applicant's place of employment "to encourage our employees to form a union".

* Subsequently the three dismissed employees often "followed [her] around" and were "always turning up at our workplace".

* She feared harm if she returned to the Philippines because of "... the fact that these employees will not stop threatening unless [a] union is established in our company".

7 In answer to the questions on the protection visa application form "Do you think the authorities of that country can and will protect you if you go back?" and "If not, why not?", the applicant answered "I do not think that the authorities can effectively protect me from our company's employees or former employees who are angry at me because I did not sympathise with their idea of forming a union". The application form recorded that the applicant nominated a migration agent (a solicitor) to act on her behalf in relation to the application.

8 The findings of fact and the reasons for decision of the delegate commenced by citation as follows from the US Department of State's records relevantly as to the trade union situation in the Philippines:

"The Constitution and laws provide for the right of workers, including public employees, to form and join trade unions; however, while this right is exercised in practice, aspects of the public sector organization law restrict and discourage organizing. Trade unions are independent of the government and generally free of political party control. Unions have the right to form or join federations or other labour groups...

The Constitution provides for the right to organise and bargain collectively. The Labour Code provides for this right for employees both in the private sector and in government-owned or controlled corporations. A similar right is afforded to most government workers, but senior employees, members of the military forces, and essential public service workers are not eligible.

Allegations of intimidation and discrimination in connection with union activities are grounds for review as possible unfair labour practices before the quasi-judicial NLRC. However, unions often stated that widespread ignorance of basic standards and rights is a major obstacle to union organisation."

Thereafter the delegate observed:

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

9 The primary Judge observed at [7] of his reasons for judgment that the latter passage did not amount to the delegate having determined that the applicant's account was credible and should thereby be accepted, but rather, while expressing certain reservations associated with the applicant's account, that the delegate had resolved to accept that the applicant had been subjected to threats, and had a subjective fear that the threats would be carried out "for the purposes of this assessment". The delegate proceeded to reject the application, finding that there was nothing to suggest that Philippines authorities would not have been able to protect the applicant, in the event that the death threats continued when she returned to the Philippines. The delegate further found in any event that the applicant could avoid further harassment by relocating to another part of the Philippines, there being no identifiable barriers preventing her from relocating, and in that regard, "... she would be assisted by her work experience, age, and ability to speak Tagalog and English". The delegate concluded that the applicant did not have a well-founded fear of persecution for a Convention reason.

The Tribunal proceedings

10 The conduct of the proceedings before the Tribunal, and in particular, the specific questioning of the applicant by the Tribunal Member at that hearing, is central to this appeal, it being the applicant's case that the Tribunal failed to make inquiries allegedly required of it, so as to have obtained information relevant to the persecution of the applicant and the concomitant injustice claimed to have been suffered by her. The focus of the appeal being on the conduct of the Tribunal hearing and the inferences which flowed from questions both asked, and which should have been asked, by the Tribunal member, it is apposite to repeat the course taken by the primary judge of extracting the following critical passages of the transcript Tribunal hearing, in order to expose the efficacy or otherwise of the contention that the Tribunal failed to discharge its so-called "duty to enquire" as to the motives for the threats which the appellant claimed to have been made to her:

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

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

...

RRT: Why were you opposed to employees forming a union?

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

...

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

Applicant: Yes.

RRT: Ok. What threats did you receive?

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

RRT: What type of threats do they...

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

...

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

Applicant: I think they would get back at me.

RRT: Who? Who will get back at you?

Applicant: Ah, the persons who I terminated.

RRT: How will they know you have returned?

...

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

RRT: Did you consider changing your employment?

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

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

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

RRT: In Manila?

Applicant: Yes.

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

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

RRT: Where... how would they do that?

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

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

Applicant: Yes.

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

Applicant: Um... I don't think so.

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

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

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

Applicant: OK.

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

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

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

...

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

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

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

Applicant: No, nothing.

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

Applicant: Ah, no.

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

Applicant: No. (Emphasis added)."

11 In her reasons for decision dated 6 September 2001, the Tribunal member stated as follows under the sub-heading "Findings and Reasons":

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

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

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

12 In summary, the Tribunal member was not satisfied that the applicant's fear of harm was based on a Convention reason but rather on the "grudge" borne against the applicant by the three employees which she had dismissed for stealing money, and not because of their desire to form a union which had been communicated to her, and which she had openly refused to support.

The reasons for decision of the primary judge

13 The primary judge firstly dismissed the applicant's contention that the Tribunal had neglected its duty under s 414 of the Migration Act to review the delegate's decision by reason of a failure to address the correct question, that contention having turned on the proposition that the Tribunal had not appreciated the nature of the case the applicant had been advancing. As the primary judge pointed out, and as appears from what has been extracted in [11] above, the Tribunal found that the only persons whom the applicant feared were the three dismissed employees, and that those three former employees had made the threats directed at the applicant because she had dismissed them for wrongdoing, and not because of her attitude towards the formation of a union at the restaurant. That finding was clearly made by the Tribunal, so the primary judge pointed out, in response to what it had understood to be the applicant's claim, namely that the three dismissed employees had made threats linked to her opposition to the formation of a union. Thus the Tribunal had indeed appreciated, so his Honour continued, that the applicant's claim was that the threats made by the dismissed employees had been motivated by political opinion imputed to her. The Tribunal had further pointed out, so the primary judge continued, that the applicant had not mentioned at the hearing that she expected to receive threats from disgruntled employees whose desire to form a union she had not supported, and that there had been no point in the Tribunal making those observations, unless it had perceived that the applicant had indeed claimed that threats had been made against her by persons other than the three dismissed employees, and further that these threats had been motivated, at least in part, by her opposition to the formation of a union. The Tribunal rejected this claim, the primary judge emphasised, because of the applicant's own testimony that the persons she feared were the three dismissed employees. It was in those circumstances that his Honour considered that the Tribunal had not failed to appreciate the nature of the case the applicant had been seeking to advance, and concluded that the Tribunal addressed the contentions raised by the applicant and did not misconceive the nature of its duty.

14 The primary judge secondly found, contrary to the next head of submissions of the applicant below, that it was open to the Tribunal to make the findings criticised in the applicant's submissions, thereby pointing out that the Tribunal rightly thought that the applicant's response to its enquiry as to the nature of the threats she received did not suggest that the threats were in such terms as to cause her to believe that the same had been made because she opposed the formation of a union. When later asked by the Tribunal what would happen to her if she returned to the Philippines, his Honour pointed out that the applicant's answer was that the persons whose employment she had terminated would get back at her, and not that she feared harm from other employees or former employees. Moreover, so his Honour continued with this second finding, that it was the applicant's evidence as a whole, including her failure to answer questions in a way that supported her claims, that led the Tribunal to infer that the three dismissed employees made threats against her because they bore a grudge against her for dismissing them for misconduct, and it was in that sense that the inference drawn by the Tribunal was based on the applicant's "own evidence".

15 The primary judge therefore concluded that there was material before the Tribunal from which it was entitled to infer that the applicant feared harm only from persons motivated solely by personal antipathy towards her, arising from her actions in dismissing them for misconduct. It could not therefore be concluded, his Honour continued, that the Tribunal's findings were made irrationally or arbitrarily or without any evidentiary foundation.

16 The primary judge thirdly dismissed what his Honour described as the "what if I am wrong" argument put forward by the applicant, that is to say, an argument founded on the proposition that the Tribunal, on the material placed before it, could not have confidently made a finding that the threats of the three dismissed employees were motivated for reasons other than the applicant's anti-union views. That approach was not open, his Honour stated, in the light of dicta in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at 240-241 (per Sackville J with whom North J agreed). As there pointed out, it was not for the Tribunal to consider the possibility that its factual findings may have been wrong, if a fair reading of its reasons showed that the Tribunal had "no real doubt" about its finding. In the present case, his Honour considered that the Tribunal's reasons showed that it had no real doubt about the critical finding which it made, namely that the three dismissed employees had not made threats for any Convention related motive.

17 The fourth segment of the reasons for judgment of the primary judge related to the "failure to enquire" argument put forward on behalf of the applicant. Reliance had been placed by the applicant in that context upon Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38 at 50, where Sackville J had earlier enunciated the principle that if the facts found by the Tribunal gave rise to an arguable claim that an applicant feared persecution for a particular Convention reason, the Tribunal erred by failing to address that claim. Reliance was further placed upon the principle enunciated in Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 94 FCR 28 at 63, where Merkel J held to the effect that the Tribunal was not to limit its determination to the case articulated by an applicant if the evidence and material which it accepted, or did not reject, raised a case not articulated by the applicant. The primary judge below held however that there were clear differences between the circumstances involved in those cases and the present circumstances, the principle applied or discussed in those cases being concerned with the obligation of the Tribunal to consider an argument that an applicant was entitled to the protection of the Convention where the facts found by it, or at least not negated by its findings, might support the argument not articulated by the applicant. In the present case by way of contrast, so the primary judge emphasised, the findings by the Tribunal were inconsistent with any claim by the applicant to fear persecution in the Philippines for a Convention reason, and there was nothing in Saliba or Paramananthan to suggest that the Tribunal had been obliged, whether by s 420(2)(b) of the Act or otherwise, to make further enquiries in circumstances where, on its own finding, the applicant could not be said to be a person to whom Australia has protection obligations under the Convention.

18 Apart from the failure of the applicant to bring her circumstances within the scope of the foregoing authorities, the primary judge also dismissed the factual contention that the Tribunal had failed to enquire into the motivation for the threats by not asking the applicant what had been said by the three dismissed employees when they threatened her, pointing out that the Tribunal did ask her what threats she received, and what types of threats they were, and that the Tribunal could hardly be obliged to repeat questions, or to rephrase questions, simply because the applicant's answers did not advance her own case.

19 The last segment of the submissions of the applicant below concern what his Honour termed the procedural fairness argument. After pointing out that a denial of procedural fairness may result in a decision made in excess of jurisdiction in respect of which a writ of prohibition will lie (Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 91 (per Gaudron and Gummow JJ with whom Gleeson CJ agreed), at 135 (per Kirby J) and 143 (per Hayne J), and that the Migration Act did not contain, at least prior to the 2001 privative clause amendments, a comprehensive procedural code such as to exclude the common law rules of procedural fairness (Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 179 ALR 238 at 260 (per Gaudron J), at 270 (per McHugh J) and at 282 (per Kirby J), the primary judge pointed out that the content of the obligation to accord procedural fairness turns on the circumstances of the particular case, and that in the case of the application before him, the applicant's proposition came down to the effect that the Tribunal should have told the applicant that her answers were not sufficient to make out a case that she feared persecution by reason of imputed political opinion. His Honour's response was that the Tribunal member did in fact tell the applicant that the Tribunal was experiencing difficulty putting her claim within one of the Convention categories, including that category of a person who feared persecution by reason of political opinion, and that even if so much was an inadequate warning that her evidence was insufficient to make out a case, it was difficult to see why the Tribunal was bound to go further, his Honour citing in that regard Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576 (per Gummow and Hayne JJ) and Aala at 115 (per Gaudron and Gummow JJ). In summary, as to this last segment of the applicant's submissions, the Tribunal was not obliged, in his Honour's view as a matter of procedural fairness, to warn the applicant that her answers were insufficient to establish her case.

20 Hence the primary judge concluded that there was an absence of jurisdictional error, and that it was therefore unnecessary to determine whether the Court had power to grant relief on any of the grounds relied upon.

The submissions advanced by the appellant on appeal

21 Counsel for the appellant (applicant) described the essential issue formulated for submission to the Tribunal as whether it was persuaded or otherwise that the appellant's fears for her safety were held by reason of her prior opposition to forming a trade union at her place of employment, being a determination which required the Tribunal to make a factual enquiry into what was said when the threats were made, since the "actual threats" would reveal the reason why the same were made. Upon that footing, it was said that the Tribunal both failed further to enquire, or as otherwise expressed, failed to perform its inquisitorial duties, and further failed to consider that its findings might be wrong. Those contentions comprised the two heads of submissions advanced on appeal.

22 As to the asserted failure of the Tribunal to enquire, since the case involved repeated threats made by persons known to the appellant, it was contended that the Tribunal ought to have enquired into what threatening actions occurred, and in particular, what words were said by the persecutors each time that a threat was made, given that the Tribunal was seeking to determine what motive, if any, could be attributed to those making such threats. Counsel for the appellant accepted that the Tribunal did ask "What threats did you receive?" and "What type of threats did they...?", but contended that such questions did not elicit from the appellant testimony as to what was said by the persecutors when making the threats. The appellant further contended that at no stage during the hearing did the Tribunal enquire into the so-called Convention nexus by asking the question "What was said by these men when they threatened you?" If the Tribunal had done so, the appellant's submission continued, the appellant would have given the evidence set forth in her affidavit filed in the proceedings in this Court at first instance, being evidence which, if accepted, was said to clearly establish a causal nexus with the appellant's opposition to forming a trade union at the restaurant. The appellant submitted that her testimony to the Tribunal firstly appearing in what has been extracted in [10] above (ie commencing "Um, because I am afraid, because ...") had "linked the threats with her opposition to forming a union at her workplace".

23 Focusing further upon the abovementioned hypothetical question "What was said by these men when they threatened you?", the appellant next submitted that the Tribunal's supposed failure to ask that question was not a matter of incorrectly assessing the evidence and reaching a finding of fact, this being a matter for the Tribunal alone in the absence of legal error, as in drawing an inference that is not open. Nevertheless the appellant accepted, that in the absence of legal error, when exercising its duty to assess the evidence and make findings of fact, the Tribunal was entitled "to go wrong", in the sense that other minds may differ.

24 It was therefore submitted by the appellant that the Tribunal's failure to ask the question "What was said by these men when they threatened you?" constituted a procedural error which demonstrated that the Tribunal had erred, in that it misconceived its duty to enquire and failed to apply itself to one of the critical questions to be decided, and thereby acted in excess of its jurisdiction. The appellant further contended in that context that the Tribunal had both statutory and common law obligations which required, in the circumstances postulated, an examination of the evidence relevant to the issue why the threats were made. The Tribunal's obligations in those circumstances were said not to be merely passive, but to fulfil its duties as an inquisitor.

25 The appellant next distilled from the grounds for the appellant's visa application, which have been already summarised in [6] above, the appellant's assertion, lastly there appearing, that "these employees will not stop threatening unless [a] union is established in our company", and upon that foundation submitted that by failing to ask a question in the nature of that set out above, the Tribunal did not investigate the applicant's claim, nor give it any consideration. The appellant therefore claimed that the Tribunal failed to apply itself to one of the critical questions to be decided, namely whether the persecutors would not stop unless the appellant agreed to form a union, and thus committed a further jurisdictional error. Moreover the appellant clamed that the Tribunal dismissed her application on a different basis to that of the delegate; for that reason and given that the applicant had not been legally represented at the hearing, procedural fairness demanded that she ought to have been informed by the Tribunal of the ground upon which it considered that it would base its adverse decision, either at the hearing or at a resumed hearing. In that context, it was submitted by the appellant that the Tribunal's observation, recorded in its decision that "I put to the applicant that I had difficulty accepting that her claims fitted the criteria for refugee status as set out in the Convention", did not suffice to discharge its duty to accord procedural fairness, since the Tribunal was said to have stated at the hearing that this concern on its part evolved from the fact that the owner of the restaurant had given instructions to oppose the union (see the passage attributed to the Tribunal member extracted in [10] above commencing "I really find it difficult to accept..."). The passage cited did not indicate to the appellant, the submission continued, that the Tribunal held any view that the threats could have emanated from the dismissals alone.

26 Moving then from the first segment of submissions on appeal, described as the Tribunal's asserted failure to enquire, to the second segment of submissions on appeal, described as the Tribunal's failure to consider that its findings might be wrong, the appellant pointed to the circumstances that the Tribunal accepted that the persecutors had threatened the appellant's life and person, and further, that it had accepted as being true two particular events that had preceded those threats. The first of those events was that the appellant had opposed the formation of a union at the restaurant which she managed, and the second was that the appellant had dismissed the three persecutors from employment at the restaurant when she caught them stealing money. However so the submission continued, the Tribunal had not enquired into what was said when the threats were made, and therefore its finding that the threats arose from the dismissal alone was a matter of inference. That being so, it was submitted that the Tribunal could only decide between the two antecedent events if there was a proper basis in the evidence to do so. Yet as further submitted by the appellant on appeal, there was no material before the Tribunal which would have enabled it to determine affirmatively, as it did in fact, that the threats to the appellant, such as they were, had occurred by reason of the dismissal of her persecutors alone, and therefore the Tribunal could not have come to such a finding upon the basis that it was the correct, the most preferable or the most likely conclusion. To have so found, the appellant claimed that the Tribunal had erred in law, citing in that regard passages from Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470 at 476 (Dixon CJ) and Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 294 (Kirby J); especially was that said by the appellant to be so, given that the Tribunal made no adverse credit findings concerning the appellant on that issue, nor generally. Moreover it was said that the fact that other employees who wished to form a union had not made any threats against the appellant was irrelevant to the same issue.

27 The appellant accordingly submitted that upon the basis of the materials placed before the Tribunal, the only conclusion which had been open to it, as a matter of law, was a composite one, namely that the persecutors' threats emanated from the appellant's opposition to the establishment of a union at her workplace in the Philippines, the dismissal of the persecutors for stealing, or from a combination of both circumstances. Accordingly, so the submission continued, the Tribunal was obliged to evaluate the possibility that the appellant received threats by reason of her opposition to forming a union, and that thereby her fears of persecution for a Convention reason were well founded. Moreover the Tribunal's task was said to have been to determine, as an issue of fact, whether the appellant's opposition to the union played any part in bringing her persecutors to make the serious threats to her life and person which she had recounted. Whilst the Tribunal made a finding on this point, the way it did so demonstrated, so the appellant's submission concluded, that the Tribunal erred in law and thereby acted in excess of its jurisdiction.

The principal responses of the respondent Minister on the appeal and my conclusions

28 The respondent's submissions in outline were essentially to the effect that the assertions of the appellant on appeal were addressed by the primary judge, and that the appellant had not at least explicitly submitted in address that the primary judge misunderstood the applicable legal principles or misapplied the same, or made any other error, whether of law or otherwise. Moreover, so those submissions proceeded, the appellant misconceived the nature of an appeal to a Full Court from the decision of a single judge of this Court at first instance, citing Branir Pty Ltd v Owston Nominees (No. 2) Pty Ltd [2001] FCA 1833 at [21] to [23], being passages which comprehensively digest the authorities, and may be summarised briefly to the effect that the task to be undertaken by the appellate court is the correction of error. A major difficulty which the Full Court has here encountered in analysing the appellant's submissions is that the same have not purported to identify specific errors in the text of the analysis of the primary judge, including his Honour's application of authority, but rather tend to treat this appeal as an application de novo for review of the Tribunal's decision.

29 The respondent Minister maintained that the primary judge had demonstrated an entirely correct appreciation and understanding of the applicable legal principles, and had appropriately applied the same, and that it was wrong for the appellant to assert for instance that the Tribunal had not appreciated the appellant's claim that she faced harm at the hands of the union, or that she had been threatened with physical harm in relation to her union activity. The respondent submitted however, I think correctly, that what the Tribunal ultimately concluded was to the effect that whatever might have been the perceptions of the appellant as to threats of harm on the part of the three former employees whom she had dismissed, there had been no factual data put forward by the appellant to support the thesis of a relationship between those threats and matters of political opinion existing in the Philippines in relation to trade unions. The respondent pointed in that regard to the culminating dialogue between the Tribunal and the appellant, commencing with the Tribunal member's observation, included in the extract at [10] above, that the member found it difficult to accept that the threats had been made in relation to the appellant's opinion concerning union coverage of the workforce, and that the threats had rather been made to the appellant in relation to the appellant's conduct in dismissing the three employees involved in the making of those threats.

30 In response to the emphasis of counsel for the appellant in address upon the inquisitorial nature of the Tribunal's function, the respondent submitted to the effect that it was too simplistic for the appellant to draw the distinction between the paradigms of adversial and inquisitorial processes, and in that regard the respondent cited the passage in Abebe which has been identified in [19] above, and which is now reproduced below for ease of reference (including the highlighted emphasis of part thereof made by the primary judge):

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

I am unable to comprehend how it can rightly be contended by the appellant that the Tribunal's exercise of its decision-making functions fell short of the principles above enunciated.

31 As already foreshadowed, the submissions now advanced by the appellant to the Full Court to the effect that the Tribunal had failed, or had failed adequately, to make inquiry relevantly in relation to the appellant's claims, did not purport to specifically address the impact of the principles discussed and applied by the primary judge, as have been summarised in [16-19] above. Instead, the approach adopted on the appeal was to seek to demonstrate that if the Tribunal had fulfilled its inquisitorial function according to law, the Tribunal would have found itself confronted with evidence to the effect subsequently set out in an affidavit made by the appellant, which was presented by the primary judge in the circumstances which his Honour recounted in his reasons for judgment as follows:

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

It is important to note what is not in the affidavit. The applicant does not suggest that she misunderstood the RRT's question or explanations, nor that she felt inhibited in any way in responding to the questions or in making submissions to the RRT. She does not provide any explanation for failing to present the material in the affidavit to the RRT when she had the opportunity to do so. And she does not suggest that she was misled by anything the RRT member said in the course of the hearing: cf Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, at 114, per Gaudron and Gummow JJ.

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

32 I do not think that the Tribunal member was obliged, in the circumstances which confronted her, to undertake additional or further enquiry of the appellant to that which she in fact undertook. In the light of the testimony which the appellant had already advanced to the Tribunal, it would have been somewhat tautological for the Tribunal to have asked the appellant, by the time of the conclusion of the testimony which she had actually given, the suggested question to the effect "What was said by these men when they threatened you?" What the appellant's submission in this regard requires is an unjustifiable extension to the principles enunciated in Rajalingam, Saliba and Paramananthan, to which reference was rightly made by the primary judge, with approval, as I have already recorded in [16-17] above, being an extension which would tend to render open-ended the inquisitorial function of the Tribunal.

33 Moreover I agree with the respondent's contention that the appellant gains no assistance from the passages in Holloway or Wu Shan Liang referred to in [26] above. Holloway was concerned with the legitimacy of the role of an appellate court in drawing inferences on the balance of probabilities in relation to a case of personal injuries arising out of a motor vehicle accident, and involved a different area of enquiry to that the subject of the present controversies. Moreover the judgment of Kirby J in Wu Shan Liang at 294, containing as it did the following passage:

"Ultimately, the question is whether the delegate allowed her mind to consider all the relevant possibilities by looking back at the entirety of the material placed before her and considering it against a test of what the "real", as distinct from fanciful, "chances" would bring if the applicant were returned to China."

is not at odds with the approach adopted in substance and reality by the present Tribunal in its reasons for decision. The respondent Minister correctly submitted that such approach was similar to that which was approved by the majority of the High Court in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ, Gaudron and Kirby JJ dissenting), to the effect that the Tribunal should not be shown in principle to have necessarily erred in law in its understanding of the relevant legal criteria, in circumstances where there were findings confined to some factual matters, and there was a failure to make findings on others. At 629, the majority judgement further observed as follows:

"The Tribunal concentrated its attention on Mr Eshetu's explanation of his fears. Having rejected that explanation, it did not embark upon a search for some alternative explanation which he did not advance. Once again, different minds could form different views about the reasonableness of that approach. However, it involves no error of law. The ultimate question was whether the Tribunal was satisfied about something. The approach adopted by the Tribunal does not manifest a legally erroneous view as to what it was about which it needed to be satisfied. For the Tribunal to conclude that, although it was satisfied that Mr Eshetu feared persecution, an examination of the reasons he advanced as to why he held the fear failed to satisfy the Tribunal that the fear was well-founded, does not reflect any misunderstanding as to the meaning of the concept of a well-founded fear."

34 I am of the view that there was sufficient material placed before the Tribunal to ground the concluding inferences drawn by the Tribunal in the formulation of its decision. I do not think that the reasons for the findings and conclusions of the primary judge, which I have earlier summarised, can be faulted, and in my opinion, his Honour's decision to dismiss the appellant's application was soundly reached upon the basis of those reasons.

35 The respondent submitted in any event that in the light of Part 8 of the Migration Act introduced on 25 October 2001 (see again [5] above), the decision of the Tribunal must be treated as valid, at least for the reasons that the decision of the Tribunal satisfied the three principles enunciated in R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 at 615; the respondent cited in that regard O'Toole v Charles David Pty Ltd [1991] HCA 14; (1991) 171 CLR 232 at 251. As earlier mentioned, the primary judge did not find it necessary to consider the effect of subs 474(1) of Part 8 of the Act, because of his finding as to the absence of jurisdictional error on any view of the scope of the privative clause the subject of Part 8. Since the handing down of the judgment below, the Full Court delivered judgment in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 and the related appeals simultaneously heard. In the light of the findings here made in relation to the reasons for judgment of the primary judge, it becomes unnecessary for this Full Court to analyse and apply the reasons of the majority in NAAV and in those related appeals to the present circumstances involved in the present appeal.

I certify that the preceding thirty-two (32) numbered paragraphs is a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated: 24 October 2002

Counsel for the Appellant:	R Wilson
Solicitor for the Appellant:	P. Leung
Counsel for the Respondent:	S Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	6 August 2002
Date of Judgment:	24 October 2002