FEDERAL COURT OF AUSTRALIA

SZQNO v Minister for Immigration & Citizenship [2012] FCA 326

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1        This case is concerned with an application for a protection visa by an Afghan man who entered Australia illegally by boat in 2010.

2        Under the Migration Act 1958 (Cth) (“the Act”) a non-citizen in Australia to whom the Minister for Immigration and Citizenship is satisfied Australia has protection obligations under the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (together “the Convention”) may apply for a protection visa. This is the criterion for a protection visa laid down by s 36(2) of the Act. Relevantly, Art 1A(2) of the Convention defines “refugee” as a person who has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and is unable or, owing to such fear, unwilling to avail himself of the protection of his country of nationality. A claim is well-founded if there is a real chance the person will be persecuted for one or more of those reasons: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (“Chan”). Art 1A(2) will not, however, apply to persecution for one or more of the reasons mentioned there unless that reason is “the essential and significant reason” or the reasons are “the essential and significant reasons” for the persecution; and the persecution involves serious harm to the applicant and systematic and discriminatory conduct: s 91R of the Act.

3        In 2001 the Act was amended to excise from the migration zone certain places off the Australian mainland: Migration Amendment (Excision from Migration Zone) Act 2001 (Cth). The stated purpose of the amendments was to discourage “people smuggling” and unauthorised boat arrivals and to promote the integrity of the entry and visa processes for which the Act provides: Explanatory Memorandum, Migration Amendment (Excision from Migration Zone) Bill 2001 (Cth). Section 46A, which was inserted by these amendments, prevents a non-citizen who enters Australia at an “excised offshore place” from making a valid visa application but gives the Minister the power to determine that the prohibition does not apply to a particular application. Section 195A (inserted by the Migration Amendment (Detention Arrangements) Act 2005 (Cth), which commenced on 29 June 2005) gives the Minister the power to grant a visa to a person in detention if the Minister thinks it is in the public interest to do so. In Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 (“Plaintiff M61”) the High Court held that in considering whether to exercise these powers the Minister is obliged to afford an applicant procedural fairness and to apply correct legal principles. This appeal raises questions about the scope of that obligation.

4        In May 2010 the appellant arrived at Christmas Island, an excised offshore place within the meaning of the Act, where he was interviewed and detained by immigration authorities. He is of Hazara ethnicity and a Shia Muslim. Before leaving Afghanistan he had lived in Kabul where he managed a hotel.

5        On 23 October 2010 the appellant requested a refugee status assessment (“RSA”), claiming he would be killed if he were returned to Afghanistan. He said that he feared the Taliban, who were hostile to the Hazara in particular and Shia Muslims in general, and that the Karzai government was unable to control them. In other words, he claimed that he was a refugee in that he feared being persecuted on the ground of his nationality or race (see Calado v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 450 at 454–5) and religion. Despite his claims, the RSA officer, a delegate of the Minister, decided he did not satisfy the definition of “refugee” under the Convention.

6        On 24 December 2010 the appellant applied for an independent merits review (“IMR”) of the RSA. That review was conducted by the second respondent (“the reviewer”) who also found that the appellant did not satisfy the Convention definition of refugee. The appellant then applied to the Federal Magistrates Court for declaratory and injunctive relief.

7        In the Federal Magistrates Court the appellant alleged that the reviewer denied him procedural fairness because she did not disclose to him independent country information concerning the plight of failed asylum seekers in Afghanistan and upon which she relied in her decision. The federal magistrate found against him and he now appeals to this Court. The Minister appeared to defend the federal magistrate’s decision. The reviewer filed a submitting appearance.

8        The appeal is in the nature of a rehearing: MZWVH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1016 at [14]. But to succeed the appellant must show that the federal magistrate fell into error: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 (“Branir”) at [21] and [25] per Allsop J (Drummond and Mansfield JJ agreeing).

The appellant’s claims

9        In a statement dated 23 October 2010 in support of the RSA the appellant said that in 2008 he introduced snooker tables to the Kabul hotel where he was working. He said he received a letter from the Taliban telling him to “stop” because Afghanistan is an Islamic country and, if he did not follow their instruction, they would bomb the hotel. He said he removed “the table (sic)” a month later. Later, he said he received another letter “accusing and threading me that young Muslims were coming and consuming alcohol, dancing and also using the hotel to have sex”. (At his entry interview he said that both these letters were signed by Amirul Momineen Mullah Mohammad Omar, the Taliban leader.)

10        The appellant said he was afraid for his safety and asked friends to escort him home after work. He said he was not able to report the matter to the local police because they were corrupt and would not help him.

11        The appellant also stated that a local police commander would come to the hotel with a friend for alcoholic drinks and he provided him with a room and free food. One day, he said, the commander arrived with a woman and asked him for a room. He said he refused because sex was not allowed in the hotel and later that night the commander returned with four armed police and destroyed the place. He said he then had no option but to report what had happened to the interior ministry, but they accused him of lying, slapped him in the face and detained him for three hours. He said that when he was released from detention, the commander told him he would kill him and there was no safe place for him in Afghanistan. He said the commander kept coming back to the hotel and kept threatening him. He said he then talked to his family and told them he had decided to leave Afghanistan. He said he believes that if he were to return he would be at risk of serious harm from the Taliban and the police commander. Indeed, he said he believes he would be killed.

12        After the appellant applied for an IMR, his migration agent sent to the reviewer a copy of a presentation given on behalf of Amnesty International early in October 2010, an article on the position of the Hazara minority in Afghanistan written by a professor from the Australian National University apparently in December 2010 and a written submission dated 5 April 2011 relating to “the Clients”. The submission (relying on “all previous oral and written evidence provided by or on behalf of the Clients”) asserted that “the Clients” all feared serious harm in Afghanistan on the following Convention grounds:

•    Ethnicity as a Hazara;

•    Actual and/or imputed political opinion – actual/perceived sympathizers/supporters of the government/coalition forces/foreign workers/NGO’s in Afghanistan;

•    Membership of the social group of failed asylum seekers returning from a western country; and

•    Religion, Shia Muslim.

13        The application before the federal magistrate was concerned with the claim made in the third dot-point above. It was not disputed that the social group so defined could be a social group within the meaning of the Convention. Cf. Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225.

14        The submission made no reference to the appellant’s personal circumstances. It was concerned with the plight of Hazara and other failed Afghan asylum seekers in general. For this reason, no doubt, both the reviewer and the federal magistrate called it a generic submission and I will use the same description. The submission referred at length to a number of reports supportive of the conclusion that there was a real chance that returning asylum seekers would be persecuted.

15        On 7 May 2011 the appellant was interviewed by the reviewer through an interpreter at Curtin Immigration Detention Centre in the presence of his migration agent. At no time during or after the interview did the appellant or his agent advance the claim that he feared persecution on the ground that he was a member of the social group of failed asylum seekers returning from a western country. Nevertheless, the reviewer accepted (and there is no dispute) that this was a claim she was bound to consider.

16        On 4 July 2011 the reviewer emailed the appellant’s migration agent requesting “in the interests of procedural fairness” that she arrange for the appellant to be given an opportunity to clarify some points about his claims. The email raised a number of matters that plainly concerned the reviewer. None of them, however, related to the claim that he feared persecution on the ground that he was a member of the social group of failed asylum seekers returning from a western country.

The decision of the reviewer

17        In her statement of reasons the reviewer identified the issue before her as being whether the appellant, though not an applicant for a protection visa, met the criterion for a protection visa in s 36(2) of the Act. She noted that, in conducting an independent merits review, the common law rules of natural justice (or procedural fairness) apply. She then proceeded to review the claims and the evidence submitted in support of them, including the information elicited from the appellant at his entry interview on 31 May 2010, further details the appellant provided in the statement of 23 October 2010, the RSA report of 14 December 2010 and the generic submission of 5 April 2011. After reviewing this material she summarised the information she elicited from the appellant in the interview she conducted on 7 May 2011. She also assessed the appellant’s claims against the available country information.

18        The reviewer’s reasons are summarised at length in the federal magistrate’s reasons and there is no need to repeat them here. Suffice it to say that she rejected each of the appellant’s claims, including the claims made in the generic submission. Importantly, the reviewer found that the appellant’s evidence about threats he allegedly received from the Taliban whilst managing the hotel in Kabul were not supported by the documents he supplied or the country information provided by his agent. She referred to an inconsistency between accounts the appellant had given about the contents of two letters (allegedly written in 2008 and 2009) which he claimed had been placed on his desk in the hotel. When the documents were translated the first referred to a different hotel and neither mentioned the specific activities the appellant had said were criticised in the letters. Nor did the letters refer to his ethnicity or religion. Moreover, the letters emanated from Wardak province where the appellant had only lived for six months a decade earlier. The reviewer found they were not signed by Mullah Omar, as the appellant had claimed. She also found other things the appellant said implausible. Ultimately (at paragraph 92 of her reasons), the reviewer found that the Taliban did not threaten the appellant by letter in 2008 or 2009 and that the inconsistent accounts undermined his claim for protection on the basis of race and religion. She also found that he had invented the Taliban letters in a misguided attempt to bolster his claims.

19        The appellant makes no complaint about any of these conclusions. The gravamen of the appellant’s complaint arises from paragraph 101 of the reviewer’s statement of reasons. It relates to one of the claims in the generic submission made on 5 April 2011. To understand the issue raised before the federal magistrate and on appeal it is necessary to refer to three paragraphs of the reviewer’s statement of reasons – paragraphs 99, 100 and 101:

[99]    I note that the first submission by the agent, dated 5 April 2011, was generic and in attempting to cover all situations regarding Hazaras in Afghanistan, included claims that neither [SZQNO] nor his agent provided me details as to his fears in this regard. [SZQNO] was provided ample opportunity to elaborate on these other claims and has not done so. The second agent submission of 18 July 2011 did not include them. There is insufficient detail or evidence provided in relation to the claims to satisfy me that [SZQNO] faces a real chance of persecution on those bases.

[100]    In relation to the agent’s submission that [SZQNO] would be at risk because of his “actual and/or imputed political opinion – actual/perceived sympathizers/supporters of the government/coalition forces/foreign workers/NGO’s in Afghanistan”, I note that [SZQNO] told me that he actively advertised, and permitted, foreigners to stay in the Nigin Asia Hotel whilst he was managing it. However, he did not claim that this was a reason the Taliban or the policemen targeted him for harm. I do not accept that this matter gives rise to a well-founded fear of being persecuted.

[101]    In relation to the agent’s submission that [SZQNO] would be at risk because of his “membership of the social group – failed asylum seekers returning from a western country”, [SZQNO] himself did not claim to fear being at risk for these reasons. The DFAT September 2010 advice states that “interlocutors did not believe Hazaras would be targeted because they had sought asylum in the west[”]. Other reports, although confirming that some failed Afghan asylum seekers have been attacked by the Taliban and other non-state actors in Afghanistan, posit that the reported attacks appear to have generally taken place for reasons other than solely being a failed asylum seeker (Dutch News, February 2011, DFAT September 2010 and February 2009, The Age 2009). I am not satisfied that [SZQNO] would be of interest to the Taliban or the policemen because of his return from the West as a failed asylum seeker. Overall I do not accept that this matter gives rise to a well-founded fear of being persecuted.

(Emphasis added.)

20        The appellant submits that the passage appearing in bold above is indicative of a denial of procedural fairness, as he had not been alerted to any of the cited reports or the way in which they would be used to reject his claim. Procedural fairness requires that information that is “credible, relevant and significant” and apparently adverse to the interests of the person who will be affected by it be disclosed, at least in substance, in order to give the person the chance to answer it: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 95–6 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ. Here, the Minister did not argue that the information in question was not credible or relevant. The argument turned on its significance.

The decision of the federal magistrate

21        The federal magistrate observed that paragraph 101 of the reviewer’s reasons had to be read in context. His Honour said that the reviewer had already (in paragraph 99) “in effect” rejected the appellant’s “generic” claim to fear persecution in Afghanistan as a returned asylum seeker.

22        His Honour described the discussion in paragraph 101 as a “conscientious determination to nonetheless give thorough consideration to the presently relevant aspect of [the appellant’s] claims”. He said that the reviewer did not rely on the undisclosed material but only referred to it “in the course of an exercise in thoroughness” and it did not cause her to revise the conclusion she had already expressed in paragraph 99. He accepted that procedural fairness would ordinarily require that adverse information be put to an applicant so that he might address it even where the reviewer did not take it into account: Kioa v West (1985) 159 CLR 550 at 628–9 per Brennan J. But he found there was no practical injustice of the sort discussed by Gleeson CJ in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 (“Lam”) at [37] and hence, no denial of procedural fairness.

The appeal

23        In this appeal the appellant claims that the federal magistrate erred because he failed to find that the recommendation of the reviewer was affected by “legal error”. The alleged legal errors are described in the notice of appeal as:

(1)    wrongly finding that the reviewer had dismissed the appellant’s claims before and independently of her consideration of those claims.

(2)    wrongly finding that the reviewer did not rely on the country information to which she referred in paragraph 101 her reasons to reach a relevant conclusion.

24        The appellant’s argument, in short, is that upon a correct analysis of the reviewer’s reasons, paragraph 99 contained a summary of the conclusions the reviewer reached upon a consideration of the claims in paragraphs 100 and 101. If so, the appellant submits, the findings in paragraph 101 can be regarded as dispositive “and therefore the use of country information to reach those findings can be recognised to be adverse and decisive” against the appellant’s claim to fear persecution as a failed asylum seeker returning from a western country.

25        In substance, however, the appellant’s complaint is that the federal magistrate erred in failing to find that the reviewer denied the appellant procedural fairness. Indeed, the orders sought include a declaration to that effect.

Had the reviewer already reached her conclusion on the claim before referring to the material not disclosed to the appellant?

26        I am conscious of the need not to approach the reviewer’s reasons with an eye keenly focused on the perception of error (see, for example, Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 271–2). The immediate task at hand, however, is not scrutinising the reasons for error but deducing where the reasons are to be found.

27        The Minister argued that the federal magistrate’s opinion on this question was entitled to some weight. It is true that in an appeal by way of rehearing the views and conclusions of the primary judge cannot simply be put to one side and the case reargued: Branir at [30]. But the Court’s obligation is to give the judgment that should have been given at first instance, recognising the limitations facing any appellate court: Fox v Percy (2003) 214 CLR 118 at [23]. In this case, however, there are no relevant limitations. This Court is in as good a position as the federal magistrate to adjudicate upon the reviewer’s reasoning process.

28        In paragraph 99 the reviewer stated that there was insufficient detail or evidence provided to her to satisfy her that the appellant faced a real chance of persecution on the bases advanced in the April 2011 submissions. That included the ground that he was a member of the social group of failed asylum seekers returning from a western country. It seems to me that there are two ways of looking at paragraph 99. Either (as the appellant submitted) it was merely a summary of the conclusions in paragraphs 100 and 101 or, rather than a conclusion on the claim, it was merely a conclusion on the effect of the material the appellant had presented or which had been proffered on his behalf. Whilst ordinarily that would be sufficient to dispose of a claim, in this case the appellant had urged the reviewer to do her own research and she obliged. If she had reached a conclusion before considering the undisclosed country information, it was a provisional one. Either way, I do not believe that paragraph 99 was intended to be read independently of the conclusions in the later paragraphs.

29        It follows that the appellant’s first point is made out.

Did the reviewer rely on the undisclosed country information?

30        Before going any further it is desirable to say something about the information itself.

31        The 2009 DFAT cable referred to reports from sources in Kabul of “several cases of returnees and deportees coming from western European countries that were targeted by state or deportees and non-state agents of persecution in Kabul and its suburban areas”. One of these returnees, who was said to have been targeted by “unknown individuals” in the city, was beaten up and robbed. Another was followed by an enemy of his father and injured by gunfire. A third was kidnapped for ransom. One, who had been targeted by anti-government elements (“AGEs”), was killed during a suicide attack in Kabul. The report continued:

These Afghans can not stay in areas controlled by AGEs as they would be targeted primarily as a result of their residence in a western country. Returnees would be approached for a ‘financial contribution’ to the jihad, and returnees are more likely to be accused of spying for foreign troops …

32        The Age article, entitled “The asylum seeker we sent home to his death”, reported the death in Afghanistan in 2008 of a failed asylum seeker who had been convinced he was a target of the Taliban, and the comments of a successful Afghan asylum seeker to the effect that 11 asylum seekers on Nauru had been killed by the Taliban on their return to Afghanistan. It contained a statement attributed to a member of the Taliban disclosing that he knew that a man had returned from Australia and describing him as “an agent”, and a former Nauru detainee’s assertion that seeking refuge in Australia worsened his crime. The Dutch News item entitled “Failed asylum seeker killed in Afghanistan” was an online report in 2011 of the murder by the Taliban of one man in Kabul who had been deported to Afghanistan from the Netherlands.

33        The conclusion in paragraph 101 is based on a number of things including the reviewer’s interpretation of the material that was not disclosed to the appellant. The reviewer referred to the undisclosed country information both to evaluate the merits of the appellant’s claim and to test the proposition in the 2010 DFAT advice, to which the RSA referred, that was adverse to the appellant. The reviewer apparently considered that the undisclosed reports did not detract from the 2010 DFAT advice and therefore were insufficient to persuade her that the appellant’s claim was well-founded. To that extent she relied upon them. She might not have relied on that part of the material that supported the appellant’s case and none of the information might have formed “the basis” of her conclusion, as the federal magistrate reasoned (at [35]), but that does not mean that she did not rely upon those parts of the material she apparently considered did not assist the appellant’s case.

34        The appellant’s second point is therefore made out.

Was there a denial of procedural fairness?

35        The appellant’s success on the matters raised in the notice of appeal does not, however, mean that the appeal must succeed. Two questions remain: did these errors give rise to a denial of procedural fairness and, if so, should the Court grant relief.

36        In Lam Gleeson CJ observed at [37] that:

Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

37        Lam was a case involving the cancellation of a visa on character grounds. The applicant was a Vietnamese refugee and a convicted heroin trafficker. He applied for constitutional writs claiming that the Minister had denied him procedural fairness. The claim was based on the fact that a Departmental officer had written to him indicating that he had intended to contact the carers of his children to assess the possible effects on them of his visa cancellation, but no attempt was made to contact them and so a primary consideration (the best interests of his two Australian-born children) was not taken into account. There was, however, no suggestion that the applicant relied to his disadvantage on the representation in the letter. Before the letter was sent he had made submissions based on the best interests of his children and so had his fiancée and the carer herself. He was unable to point to any additional information or argument that might have been put before the Minister if contact had been made after the letter or if he had been told there would be no contact. Consequently, the Court found that the applicant had lost no opportunity to advance his case and there had been no denial of procedural fairness.

38        In the present case the federal magistrate said (at [36]) that before a finding of denial of procedural fairness will be made the Court must be satisfied that the reviewer’s failure to advise the applicant of the information resulted in practical injustice of the sort discussed by Gleeson CJ in Lam. His Honour said that practical injustice would not be occasioned in this case. The reason he gave was that the reviewer had “implicitly expressed her view” about the relevant claim in paragraph 99 and “the information in question, which was used to test that conclusion, could not have altered her view because it did not serve to contradict or undermine it”. As I have formed the view that the reviewer’s conclusion on the claim was not merely contained in paragraph 99, it follows that I do not accept his Honour’s conclusion on the question of practical injustice. In any case, I have trouble with his Honour’s statement that “the information … did not serve to contradict or undermine it”. That is not, it seems to me, an application of the principle in Lam.

39        The Minister pointed to the fact that the 2010 DFAT report had been disclosed and that the appellant had had an opportunity to comment on the statement in it that “interlocutors did not believe that Hazaras would be targeted because they had sought asylum in the west”. That, of course, was at odds with what was revealed by the February 2009 DFAT cable. I interpolate that neither the reviewer nor the Minister suggested that the advice in the 2010 DFAT report should be preferred to the information in the 2009 cable because of a change of circumstances in Afghanistan. The Minister submitted, however, that the undisclosed material was not adverse to the appellant and therefore there was no obligation to disclose it.

40        While on its face the undisclosed material was not indeed adverse to the appellant, it does not follow that there was no obligation in the circumstances to disclose it. In Plaintiff M61 the Court said (at [91]) that procedural fairness required the reviewer to put to an applicant the substance of matters the reviewer knew of and considered may bear upon whether to accept the plaintiff’s claims. In Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45 at [30]–[31] Rares and Jagot JJ observed that procedural fairness did not require the reviewer to put to an applicant every piece of information the reviewer was considering, merely the substance of it, but acknowledged that the reviewer may have to go further in certain circumstances.

41        Here, much, if not all, of the undisclosed material was no different in substance from the material to which the appellant referred in the generic submission of 5 April 2011. Yet, the appellant submitted, the information was used in a way that was adverse to the appellant’s case – something he could not reasonably have expected – and, for this reason, it should have been disclosed. I agree, although disclosure of the reports alone would not have been enough. The point the reviewer was implicitly, if not explicitly, making was that, although there were (credible) reports confirming that there had been attacks by the Taliban on (unsuccessful) asylum seekers, the fact that the reports did not establish that the victims had been attacked only because they had returned from a western country meant that the reports could (and should) be discounted, if not disregarded. That was a matter upon which the appellant was not heard although it was part of the reason his application was dismissed. As McHugh J observed in Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 (which concerned the power of the Minister in s 56 of the Act to obtain information he thinks relevant) at [141]:

In some cases, exercises of the power [to obtain relevant information under s 56 of the Act], although conditioned by the rules of natural justice, will not require that the applicant have an opportunity to comment on the material. Examples of material that would not require comment by the applicant would include non-adverse country information, favourable or corroborative information in the public domain and information based on the circumstances already described in the application. But there are cases where the exercise of this power does require that the applicant be given an opportunity to comment on the material. An example is where the delegate proposes to use new material of which the applicant may be unaware and which is or could be decisive against the applicant's claim for refugee status. The need for disclosure by the delegate is even stronger where the material concerns circumstances that have changed since the date of application and is being used after considerable delay. It is stronger still when the material is equivocal or contains information that the applicant could not reasonably have expected to be used in the way the delegate uses it.

(Emphasis added.)

42        Here, some of the material was arguably equivocal and if not equivocal, contained information that the applicant could not reasonably have expected to be used in the way the reviewer used it. That is so for two reasons. First, as I have already observed, the material was essentially supportive of the appellant’s case. Secondly, and more importantly, the reviewer appears to have reasoned that, because the reports suggest other motivations for the reported attacks in addition to the fact that the victims were failed asylum seekers returning from a western country, then the appellant could not establish that any fears he might have entertained as a member of the relevant social group were well-founded. But the fact that there may have been multiple reasons only one of which was a Convention reason does not necessarily mean that a fear is not well-founded. As s 91R makes clear, what matters is whether the Convention reason or reasons is (or are) the essential and significant reason(s). A Convention reason might not be the sole reason, but it might be “the essential and significant reason”.

43        The reviewer did not find that membership of the relevant social group was not the essential and significant reason. The reviewer did mention s 91R in her brief discussion of the relevant law at the outset of her reasons. The fact that she referred to s 91R militates against the conclusion that she applied the wrong test and the appellant did not formally submit that she did. But the use of the adverb “solely” is worrying, particularly when – despite the reference to s 91R – the reviewer did not at any point expressly refer to “the essential and significant reason” for the attacks and therefore to the essential and significant reason for the alleged fear.

44        The Minister nevertheless submitted that there could be no practical injustice where, as here, the appellant called no evidence to show what material he would have put before the reviewer if he had known of the information the reviewer did not disclose. He relied upon a reason given by Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte “A” (2001) 185 ALR 489 (“Ex parte “A””) for concluding that there was no breach of the rules of natural justice in that case. In Ex parte “A” at [54], in a passage the Full Court applied in SBBS v Minister for Immigration and Multicultural Affairs (2002) 194 ALR 749 at [37], his Honour noted:

[T]he applicant has not placed before this court a clear indication of the type of evidence or material that he would have placed before the tribunal if he had known of the country information made available to it. In default of some indication of the nature of the opportunity which the applicant says he was denied (and the presentation of evidence or material that would constitute an arguable case that might result in a different outcome) any omission by the tribunal to disclose the country information to the applicant (assuming such disclosure to be obligatory) was not shown to be material in this case.

45        There are always difficulties in applying statements apparently of general principle without regard to the context of the particular case in which they were made. There is no obligation on an applicant who complains of procedural unfairness to positively establish that, had it not been for the unfair process, he or she would have taken a different course and practical injustice has resulted. The Minister accepted that there is no general rule that evidence of this kind is required in every case before procedural unfairness can be demonstrated: Applicants M1015/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1309 (“M1015”). See, too, NARV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 89 at [16]–[18] per Ryan and Finkelstein JJ. Lam is certainly not authority for that proposition. It is true that the absence of such a rule does not mean that evidence of this kind is irrelevant or that the failure to call the evidence in a particular case may not be decisive: M1015 at [60]; VHAP of 2002 v Minister for Immigration and Multicultural Affairs (2004) 80 ALD 559 at [16] per Gyles and Conti JJ. But each case turns on its own facts.

46        In Dagli v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 541 at [91] the Full Court approved a statement of Hely J in Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1069 at [34] that if an applicant is not informed of the case he has to meet, that is sufficient to establish “practical injustice” without him having to prove what he would have done had he been informed of the case. The Minister submitted that these cases were distinguishable as they dealt with cancellations of visas on character grounds where the applicant had a case to meet whereas here, the applicant was not meeting any case. While that may be true, it does not mean that the appellant had to take the next step. Here, the reviewer had regard to information, relied upon it to dismiss one of the appellant’s claims, and did not give him an opportunity to be heard before she did so. That is enough to amount to practical injustice. Had he had that opportunity he would, at least, have been able to remind the reviewer that merely because the Convention reason was not the sole reason for the chance of persecution, it might still be the essential and significant reason.

Should relief be granted?

47        The grant of relief for procedural unfairness is discretionary. Relief should not be refused unless the Court is confident that the denial of procedural fairness could not have affected the outcome of the proceeding: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145; Re Refugee Review Tribunal: ex parte Aala (2000) 204 CLR 82 at [131] per Kirby J. Despite the concerns I have expressed, for the following reason I am confident that the denial could not have affected the outcome of this case. In theory, there is no impediment to the making of a declaration but there is no utility in it.

48        The question whether the appellant had a well-founded fear of being persecuted on any Convention ground involved both subjective and objective elements: Chan at 396 per Dawson J, at 406 per Toohey J, at 415 per Gaudron J. In other words he had to fear persecution for a Convention reason and that fear had to be well-founded. The matter complained of affected the objective element but not the subjective one. If the appellant did not meet the subjective element, then he could not satisfy the definition of refugee, regardless of whether there was material that provided objective support for such a fear. Contrary to what might have been expected if she held such a view (see Chan at 387 per Mason CJ) the reviewer made no express finding that the appellant did not fear persecution for the reason that in the foreseeable future he could be a member of social group of failed asylum seekers returning from a western country. She merely said he did not claim to have this fear. It is implicit, however, in what she did say that she did not accept that the appellant feared persecution for this reason. (I appreciate that in paragraph 103 under the heading “summary” she stated that the appellant’s fear of the Taliban and the police was not well-founded on any of the posited Convention grounds. But I do not consider that this was intended to be a finding that, despite the appellant’s failure to make the claim that he feared persecution as a member of the social group of failed asylum seekers returning from a foreign country, he actually had that fear.) In those circumstances, it was strictly unnecessary for her to address the country information at all or to decide whether there was a foundation for any such fear: cf. Emiantor v The Minister for Immigration and Multicultural Affairs (FCAFC, 20 July 1998, unreported). As the denial of procedural fairness only affected the objective element, it makes no difference to the outcome. Whether or not there may have been good reason for entertaining such a fear, the appellant did not claim to have it. Accordingly, having failed on all the other grounds, he did not satisfy the definition of refugee.

49        Consequently, relief should be refused and the appeal dismissed.

50        Costs should follow the event.

Associate:

Dated:    3 April 2012