Applicants M1015/2003 v Minister for Immigration & Multicultural & Indigenous Affairs (with Corrigendum dated 13 October 2004) [2004] FCA 1309 (13 October 2004)

Applicants M1015/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1309

APPLICANTS M1015/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

V802 OF 2003

WEINBERG J
13 OCTOBER 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 802 OF 2003

BETWEEN:	APPLICANTS M1015/2003 APPLICANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
	REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	WEINBERG J
DATE OF ORDER:	13 OCTOBER 2004
WHERE MADE:	MELBOURNE

The last line in par 53 which reads as follows:
".... in which procedural fairness is alleged."
Should read:
".... in which procedural unfairness is alleged."

I certify this is a true copy of corrigendum to the Reasons for Judgment of the Honourable Justice Weinberg.

Applicants M1015/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1309

MIGRATION – application for protection visa – applicant provided material to Tribunal suggesting all Tamils at risk of persecution in Colombo – Tribunal relied upon country information with differing view – applicant not given copy of country information during proceeding before Tribunal – whether Tribunal failed to accord procedural fairness – whether Tribunal has general obligation to provide applicant with all adverse information relied upon in decision – whether denial of procedural fairness of no consequence on basis that nothing applicant could have said could have made any difference – whether applicant required to demonstrate practical unfairness – whether applicant required to identify what he or she would have said had applicant been told Tribunal intended to rely upon adverse information

Judiciary Act 1903 (Cth) s 39B

Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 referred to
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 applied
NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262; (2003) 203 ALR 494 applied
Re Minister for Immigration & Multicultural Affairs; Ex parte "A" [2001] HCA 77; (2001) 185 ALR 489 considered
SBBS v Minister for Immigration & Multicultural Affairs (2002) 194 ALR 749 considered
Re Minister for Immigration & Multicultural Affairs; Ex parte Cassim [2000] HCA 50; (2000) 175 ALR 209 referred to
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 referred to
NAXX v Minister for Immigration & Multicultural Affairs [2002] FCA 263; (2002) 119 FCR 312 referred to
Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 considered
Applicant M115 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1448 referred to
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 referred to
VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 referred to
VWBS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 464 referred to
Ayan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 139 referred to
Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 298 applied
Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 629 referred to
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 122 applied
Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069 considered
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171; (2003) 77 ALD 1 referred to
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 discussed
NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52; (2003) 127 FCR 259 discussed
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 referred to

J Basten QC, ‘Constitutional elements of judicial review’ (2004) 15 PLR 187 at 195-8

APPLICANTS M1015/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

V802 OF 2003

WEINBERG J
13 OCTOBER 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 802 OF 2003

BETWEEN:	APPLICANTS M1015/2003 APPLICANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
	REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	WEINBERG J
DATE OF ORDER:	13 OCTOBER 2004
WHERE MADE:	MELBOURNE

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 802 OF 2003

BETWEEN:	APPLICANTS M1015/2003 APPLICANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
	REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	WEINBERG J
DATE:	13 OCTOBER 2004
PLACE:	MELBOURNE

1 This is an application under s 39B of the Judiciary Act 1903 (Cth) in which the applicants seek both a writ of prohibition directed to the Minister for Immigration & Multicultural & Indigenous Affairs, and a writ of certiorari directed to the Refugee Review Tribunal ("the Tribunal"). In August 2001, the applicants joined what has come to be known as "the Muin and Lie class action" in the High Court: see Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 ("Muin"). On 29 May 2003, they filed an ex parte application for an order nisi in the High Court. As with most such matters, that application was remitted to this Court.

2 The application was originally heard on 15 March 2004 merely as an application for an order nisi. On 21 April 2004, an order nisi was granted. On 15 June 2004, the application for final relief was heard. The proceeding extended over these three separate days because there being some uncertainty about what claims had been advanced before the Tribunal, it was necessary to have a tape recording produced in order to clarify that matter, and also because the parties sought to file additional, more detailed submissions.

3 The primary applicant (hereafter "the applicant") and his wife are Sri Lankan nationals of Tamil ethnicity. He was born in Jaffna, and still has property and relatives there. They resided in Colombo, where he worked for the same company for thirty-three years, before coming to Australia. He was a regular visitor to Jaffna whenever possible but the last time he visited there was 1992. At about that time, the Liberation Tigers of Tamil Eelam ("the LTTE") seized his property in that city.

4 The applicant arrived in Australia on 15 June 1997. His wife had arrived here some months earlier on 18 March 1997. On 27 June 1997, they lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. On 3 August 1997, a delegate of the Minister refused that application. On 26 August 1997, the applicant applied to the Tribunal for review of the delegate’s decision. On 3 December 1999, the Tribunal affirmed that decision.

5 The applicant claimed that security checks had been common in Colombo. However, in January 1996, an event occurred that dramatically affected his life. The LTTE exploded a bomb at the Central Bank in Colombo. After the explosion, a relative of his son-in-law, who had been staying at the applicant’s house, disappeared. Soon afterwards, the police questioned his son-in-law, and accused him of being connected to the LTTE. The son-in-law later fled to Australia, and was eventually granted a protection visa.

6 The applicant said that from June until November 1996, security officials repeatedly came to his house to inquire about his son-in-law. He told them that his son-in-law had gone to Australia, and that he did not know when he would return. However, this did not dissuade them from pursuing their enquiries. They told the applicant that he would be in trouble if he did not turn his son-in-law over to them. His wife told the Tribunal that while they were in Colombo, they were subjected to a great deal of harassment. The security forces regularly visited their home, and repeatedly telephoned them. She said that they could neither rest nor sleep.

7 The applicant claimed that members of the LTTE were also looking for his son-in-law.

8 The applicant claimed that he became so tired of the constant harassment, and so fearful that he would be punished by the authorities, that he decided to go to Jaffna. He said that he managed to pass through a government checkpoint at Vavuniya, although the Government had stopped all transport en route to Jaffna because the road was not secure. However, he knew that the LTTE was still running transport, and pressed on.

9 The applicant claimed that he was detained by the LTTE just outside Vavuniya. He said that he was kept in an LTTE camp, in primitive conditions, for eight months. The LTTE questioned him as to the whereabouts of his son-in-law. He said that his wife was initially detained with him, but that they persuaded the LTTE to release her in March 1997. She returned to Colombo to collect passports and visas that they had obtained before leaving for Jaffna. She then came to Australia.

10 According to the applicant, the camp at which he was detained came under attack. The applicant escaped and returned to Vavuniya. A priest helped him to obtain a pass enabling him to return to Colombo and then leave Sri Lanka. He said that he was not subjected to any security checks at the airport.

11 The applicant and his wife claimed that they would be harmed by the LTTE, and by the Sri Lankan security forces, if they were required to return to Sri Lanka. He also provided some information from the Australian Council for Tamil Refugees about human rights abuses in Sri Lanka, including indiscriminate arrests of Tamils in Colombo. That material suggested that all Tamils were at risk of persecution in Colombo.

12 After setting out the legislative framework regarding applications for refugee status, the Tribunal summarised its findings. It noted that the applicant’s claims, and those of his wife, were:

13 The Tribunal noted that the applicant and his wife claimed that security officials had constantly questioned them about their son-in-law and the relative who had stayed at their home. They claimed that the security officials threatened that they would encounter problems if they did not produce their son-in-law by November 1996. The Tribunal rejected this claim, observing that it was unlikely that officials would make such constant visits once it became clear that the subject of their inquiries had left the country. However, assuming that such visits were made, the Tribunal found that the evidence of the applicant and that of his wife did not indicate that they were harmed, other than suffering the inconvenience of being questioned with regard to a serious breach of public security. There was nothing to suggest that they were suspected of any involvement in the bombing, and no reason to suppose that they would be penalised for not producing their son-in-law as directed. Their passports were issued in early November 1996, and they each left the country at different times in 1997 without any apparent difficulty.

14 The Tribunal considered a Department of Foreign Affairs and Trade ("DFAT") document regarding passport issue and exit procedures in Sri Lanka. The country information in question suggested that passports were issued only to those who had satisfied stringent security checks. The applicant and his wife each had their own passport, and these had been acquired some months before they left Sri Lanka. The Tribunal found that the fact that they were able to obtain passports and visas, and leave Sri Lanka without hindrance, indicated that they were of no adverse interest to the authorities.

15 The Tribunal noted that at the hearing, the applicant confirmed that he and his wife held passports that were issued on 11 November 1996. They had applied for visas to Australia on 27 November 1996, and these visas had been granted the following day. At the time they applied for the visas, they each stated that they resided at their usual address in Colombo. In those circumstances, the Tribunal found that it was improbable that the applicant, claiming to be under threat to produce his son-in-law by November, would implement a plan to escape Sri Lanka for Australia, but then decide that it was better for him to go to Jaffna.

16 The Tribunal also expressed doubts about the applicant’s account of having been detained by the LTTE because the members of that organisation wanted to know the location of his son-in-law. According to the applicant, his son-in-law had harboured an LTTE member, suspected of having carried out a bombing in Colombo. It was hardly likely, in those circumstances, that the LTTE would detain the applicant for eight months for no reason other than that they wanted to know where his son-in-law was. It was equally strange that the LTTE would release his wife, and that she would come to Australia, leaving him to the mercy of the LTTE rather than remaining in Sri Lanka to work for his release.

17 In effect, the Tribunal found the applicant’s story to be "somewhat far-fetched". However, even assuming his account to be true, his wife had been released by the LTTE after being detained in Vavuniya. They had lived in Colombo for more than thirty years without encountering any significant problems from the LTTE, other than some phone calls that they believed came from members of the group before they left for Jaffna. The LTTE had no reason to harass them, given that they had apparently assisted that group, albeit unwittingly. In any event, almost four years had passed since the bombing, and there was little chance that the LTTE would have maintained any interest in them since they left Sri Lanka in 1997. There was no more than a remote chance that the LTTE would seek to harm them, and even if it did, they could turn to the authorities for protection. Moreover, they could easily avoid problems with the LTTE by resuming their usual residence in Colombo and avoiding areas controlled by that group.

18 As regards the claim that security officials in Colombo had harassed the applicant, the Tribunal found that even if this had occurred, it did not amount to persecution. It was possible that they had been questioned about their son-in-law and the relative who had stayed at their house. However, they had left Sri Lanka with relative ease. The unspecified threats that they claimed had been made in about November 1996 were never carried out. The Tribunal was "in no doubt" that the authorities were not suspicious of the applicant or his wife when they left the country, and still did not have any adverse interest in them. It concluded that there was not a real chance that they would face persecution at the hands of the Sri Lankan authorities on account of their real or imputed political opinions regardless of what they might think of their son-in-law or other relatives.

19 The Tribunal, having rejected these specific factual claims, then turned to what it described as:

It found that this "suggestion" was not borne out by information from other sources. It referred to the World Directory of Minorities, a 1997 publication that suggested that "some groups among the Tamil population may be at risk in particular situations". It referred to young men from the north or northeast war zones as being particularly at risk in Colombo after LTTE attacks in that city, or on sensitive military or economic installations, especially if they could not provide an adequate explanation for being in the city. If they could show that they were born in Colombo, or lived, studied or worked there, or had a police pass allowing them to be there for some legitimate reason, they were not at real risk of being detained or tortured.

20 The Tribunal noted that this country information had been discussed in previous cases. It also referred to more recent information such as that provided in the DFAT Country Information Report No. 67/99. That report observed that the overwhelming majority of people arrested in Sri Lanka were Tamils suspected of involvement in LTTE activities. It acknowledged that people were stopped randomly at checkpoints and asked to show their national identity cards. Those with Tamil names were questioned. However, if their identity cards showed Colombo as their place of birth, they would almost always be permitted to move on. It was noted that an estimated 500,000 Tamils lived in Colombo, almost half the population of the city.

22 The Tribunal concluded that neither the applicant nor his wife had previously been persecuted on account of their Tamil race, and that there was no more than a remote chance that they might be persecuted for that reason should they return to Sri Lanka. It then affirmed the decision not to grant them a protection visa.

23 The only ground upon which the applicant and his wife sought prerogative relief was an alleged failure on the part of the Tribunal to accord procedural fairness in relation to the country information to which I have referred. Mr Kissane, who appeared on their behalf, submitted that the Tribunal had acted upon that information in obvious recognition of the fact that one of the claims made was that they faced persecution because of their Tamil ethnicity. He submitted that the Tribunal had turned to the country information in response to the information provided by the applicant from the Australian Council for Tamil Refugees about human rights abuses in Sri Lanka, and the indiscriminate arrest of Tamils in Colombo.

24 Mr Kissane submitted that when the Tribunal spoke of "the suggestion" that all Tamils were at risk of persecution in Colombo, before rejecting that notion, it did so conscious of the fact that the applicant’s claims fell into two distinct categories. The first category involved the applicant’s son-in-law, and was based on political opinion, actual or imputed. The second was entirely unrelated, and was based solely upon his Tamil ethnicity, and that of his wife. In rejecting the ethnicity claim, the Tribunal had regard to country information that was adverse to that claim, and failed to provide the applicant with any warning that it might make use of that information, or give him an opportunity to be heard in relation to it.

25 Mr Kissane submitted that the applicant was thereby denied the opportunity to seek to persuade the Tribunal that it should not act upon this material. He submitted that had the applicant been given that opportunity, he would have been able to point out that his situation was not that of the normal Tamil, but rather of a Tamil whose son-in-law had suspected links with the LTTE. The Tribunal, faced with that submission, might have given the country information less weight than it did. In these circumstances, it could not be said that the denial of procedural fairness that had occurred was of no consequence on the basis that nothing that the applicant might have said could have made any difference.

26 In support of that submission, he relied primarily upon Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 ("Stead"). He also relied upon the decision of the Full Court in NARV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 262; (2003) 203 ALR 494 ("NARV"). He then referred to Re Minister for Immigration & Multicultural Affairs; Ex parte "A" [2001] HCA 77; (2001) 185 ALR 489 ("Ex parte "A"") and SBBS v Minister for Immigration & Multicultural Affairs (2002) 194 ALR 749 ("SBBS") and submitted that to the extent that these two cases were inconsistent with Stead and NARV, Ex parte "A" and SBBS should not be followed.

27 Mr Kissane acknowledged that a mere occurrence of a breach of natural justice did not of itself entitle the applicant to the relief sought. The authorities established that the Court had to inquire whether the absence of such a breach could possibly have made a difference. He submitted that one way of doing this was for an applicant to lead evidence as to what he might have done had he been aware of the fact that the Tribunal was minded to have regard to adverse information concerning his case. The need for such evidence, in some cases, was discussed in Ex parte "A" and SBBS. Where such evidence was led, the appropriate test was still that set out in Stead, namely whether the denial of natural justice could not have had any bearing on the outcome, a matter upon which the Minister carried the onus. He submitted, however, providing evidence on this issue was not the only way in which a court could reach such a conclusion. Elevating the provision of evidence to a requirement was adding an element not made compulsory in Stead.

28 Mr Kissane submitted that in the present case, the Tribunal had been required to weigh the applicant’s claim that "all Tamils are at risk of persecution in Colombo" as against country information that suggested that this was not so. He submitted that it could not be said that allowing the applicant to comment on, and to make submissions about, the undisclosed country information could not have made a difference. It was a question of the applicant being denied the opportunity to persuade. It was not a situation where the omission could be characterised as an insignificant, purely formal or immaterial mistake.

29 Mr Fairfield, who appeared on behalf of the respondents, submitted that there was no general obligation upon the Tribunal to provide to a visa applicant with all of the country information upon which it proposed to rely when coming to a decision.

30 He relied upon a number of authorities in support of that contention including Re Minister for Immigration & Multicultural Affairs; Ex parte Cassim [2000] HCA 50; (2000) 175 ALR 209 at [22] per McHugh J, Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 ("Miah"), NAXX v Minister for Immigration & Multicultural Affairs [2002] FCA 263; (2002) 119 FCR 312 at [52] per Gyles J, Muin, Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 ("Ex parte Lam"), Applicant M115 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1448, NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [19], VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82 at [16] and [20], and VWBS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 464 at [20]. The need to demonstrate practical unfairness was also emphasised in Ayan v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 139 at [20].

31 Mr Fairfield acknowledged that the Full Court appeared to have taken a different approach in Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 298 ("Dagli"). He submitted, however, that Dagli was clearly distinguishable from the present case. Dagli did not involve the use of general country information by the decision-maker, but rather specific material about the applicant that the decision-maker relied upon to cancel a visa on character grounds.

32 Mr Fairfield also acknowledged that in NARV, Ryan and Finkelstein JJ adopted a similar approach to that taken in Dagli. He submitted again, however, that the facts in that case were distinguishable. In any event, he argued, their Honours accepted that there might well be cases where it was not clear what, if anything, a complainant could have done. Their Honours gave examples including a case where the information was "difficult to controvert". In such a case, their Honours observed, a court would be unable to see how the complainant would have suffered "practical injustice".

33 Mr Fairfield submitted that even if it could be said that Stead established a general obligation to provide an applicant with all adverse information referred to in a decision that was "credible, relevant and significant" (to use the language of Brennan J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 629) no such obligation existed in the present case. The applicant’s claims were put on the basis that he was at risk of persecution by reason of his actual and perceived association with his son-in-law who was suspected of supporting the LTTE. On this basis, he claimed relevantly to be imputed with a particular political opinion. The applicant never claimed to be at risk of being associated with that organisation because he was a member or within a class of persons who were at risk of being imputed with such a profile. Therefore, the information referred to by the Tribunal that suggested that the applicant was not a member of a class that was at risk was not "credible, relevant and significant" to the Tribunal’s consideration of this applicant’s claims.

34 Mr Fairfield submitted, however, that even if the country information, or the Tribunal’s interpretation of it, was of some significance in determining the applicant’s claims, the applicant was required to demonstrate some practical unfairness flowing from the claimed loss of opportunity to address that country information. Mr Fairfield then referred to the applicant’s reliance upon Stead in support of the applicant’s contention that there was no such requirement. He argued that Stead clearly involved manifest, practical unfairness. It did not, however, involve a failure to provide information, still less general country information.

35 Mr Fairfield submitted that the approach adopted by Kirby J in Ex parte "A", which was followed by the Full Court in SBBS, was correct. If it were not, then any conceivable background fact or information referred to by an administrative decision-maker, which is capable of being the subject of a contrary submission, would give rise to a denial of procedural fairness, even if there were nothing unfair in that approach being adopted. He submitted that this did not accord with the concern of the law in avoiding practical injustice.

36 Mr Fairfield submitted that even if the country information were material and adverse to the applicant, and even if the Court were not required to consider whether the use of that information resulted in any practical unfairness to the applicant, the matter of unfairness was clearly relevant to the exercise of the Court’s discretion when considering whether to grant the relief sought.

37 Mr Fairfield argued that there was no evidence before the Court that the denial of an opportunity to comment upon information, which suggested that the applicant did not fit the profile of a person suspected of supporting the LTTE, resulted in any practical unfairness to him. The applicant did not suggest, and had never suggested, that the information was novel, incorrect or inaccurate. He had not referred to any country information that suggested he was a member of a class of persons who were at risk of having imputed to them a pro-LTTE profile. Indeed, Mr Fairfield contended, that would also have been inconsistent with the applicant’s claim.

38 Moreover, the applicant had not indicated what he would or could have said in answer to the Tribunal’s apparently incontrovertible comment that he was not a member of a group that the country information indicated was at risk of being imputed with a pro-LTTE profile. Accordingly, submitted Mr Fairfield, there was clearly no evidence of any practical unfairness, and no warrant for interfering with the Tribunal’s decision.

39 The starting point in any consideration of the issue that divides the parties in this case must be the decision of the High Court in Stead. That case concerned an appeal from a decision of a judge who, in the course of a trial, intimated that he did not require any further submissions from the plaintiff regarding the lack of credibility of a doctor called on behalf of the defence. The plaintiff then moved on to a different point. Subsequently, the trial judge accepted the evidence of the doctor, thereby depriving the plaintiff of an opportunity to present argument on a vital issue in the case.

41 The reasoning in Stead has never, so far as I am aware, been doubted. In Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 ("Aala"), Gleeson CJ cited Stead when he determined that it could not be concluded that the denial of an opportunity to correct a misunderstanding on the part of the Tribunal, which might have led to a different view being taken as to the applicant’s credibility, had made no difference to the outcome of the proceeding. Gaudron and Gummow JJ reached a similar conclusion at 109 and 116-7. McHugh J, who dissented in the result, nonetheless cited Stead with approval at 122, as did Kirby J at 131 and Callinan J at 153-4.

42 In Tuncok v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1069, Hely J summarised the position after Aala as follows:

43 In Dagli, a Full Court (Lee, Goldberg and Weinberg JJ) endorsed this passage as a correct statement of principle. An earlier Full Court (Lee, Hill and Carr JJ) took a similar approach in WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171; (2003) 77 ALD 1 at [57].

44 In NARV, the Full Court (Ryan and Finkelstein JJ, Downes J dissenting) allowed an appeal against a decision that the appellants had not been denied procedural fairness before the Tribunal. In rejecting a submission on behalf of the Minister that Ex parte Lam required any applicant who complained of such unfairness to give evidence of what he or she would have said in answer to any adverse country information, Ryan and Finkelstein JJ said at [17]-[18]:

45 It is true that there are various statements by other Full Courts that suggest that the traditional view, as expressed in Stead, no longer applies. These cases are based largely upon certain observations of the High Court in Ex parte Lam, a case that involved the now dubious concept of "legitimate expectations". In Ex parte Lam, the Court held that when a public authority represents that a particular procedure will be followed, that may, but will not necessarily, affect the content of the requirements of procedural fairness. To establish a breach of procedural fairness, it must be demonstrated that the procedure adopted was unfair, not that an expectation engendered by a representation had been disappointed. As the applicant had not been deprived of an opportunity to put forward additional material upon which he would otherwise have relied, no breach of procedural fairness was established.

46 In Dagli, the Full Court held that nothing said in Ex parte Lam in any way affected the validity of the reasoning in Stead and Aala. It is true that in Ex parte "A", Kirby J held that a failure to provide the applicant with country information did not constitute a breach of the rules of natural justice for three reasons. First, at [52], the information was not of recent origin and therefore involved no element of novelty, or surprise, that necessitated or invited a specific response, as had been the case in Miah. Second, at [53], the Tribunal did not "positively mislead" the applicant into believing that it had "read all of the contents of specified files when this was factually incorrect", as had been the case in Aala. Third, at [54]:

47 In SBBS, a Full Court (Tamberlin, Mansfield and Jacobson JJ) held, in substance, that there had been no denial of procedural fairness merely because the decision-maker had not given the applicant the opportunity to comment upon certain country information adverse to his case that was ultimately relied upon. After discussing Ex Parte "A" in some detail, the Court concluded at [37] that in order to establish a denial of procedural fairness, the appellant was required to identify the kind of information he would have placed before the Tribunal which would disclose an arguable case that the result would have been different.

48 Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 concerned an appeal brought by the Minister from the judgment of a Federal Magistrate who had held that the decision of the Tribunal to affirm the decision of the Minister’s delegate not to grant the applicants protection visas was infected by jurisdictional error. One of the five grounds of appeal was that the Federal Magistrate erred in holding that general law principles of procedural fairness required the disclosure of the particular country information. A Full Court held by majority (Merkel and Hely JJ, Beaumont J dissenting) that the appeal should be dismissed.

49 The majority gave careful consideration to the question of procedural fairness. They commenced by setting out the comments of Ryan and Finkelstein JJ in NARV at [15], and of Gaudron J at [99], McHugh J at [140] and Kirby J at [194] in Miah. Their Honours then said at [144]:

50 Accordingly, the majority held that the Federal Magistrate had been correct in concluding that the failure of the Tribunal to disclose the relevant country information upon which it relied resulted in the Tribunal failing to accord procedural fairness to the respondents.

51 In NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52; (2003) 127 FCR 259 ("NAFF of 2002"), a Full Court held, by majority (Lindgren and Stone JJ, Downes J dissenting), that in a case involving the doctrine of legitimate expectations, to be entitled to relief on the ground of denial of natural justice, the appellant had to show not only a reasonable belief that the decision-maker would follow the course foreshadowed but also that the failure to follow that course resulted in practical unfairness. The appellant’s failure to reduce any evidence that the Tribunal’s statement induced him to depart from a course of action that he would otherwise have followed meant that there was no procedural unfairness. NAFF of 2002 is presently on appeal to the High Court. The appeal was heard on 9 September 2004, and judgment is reserved.

52 For present purposes, I propose to proceed upon the basis that both Dagli and NARV correctly state the relevant principles governing this branch of the law. In my opinion, there is no obligation, as such, on an applicant who complains of procedural unfairness to positively establish that, absent the unfair process, he or she would have taken a different course, and that the process has resulted in practical injustice. I accept that there are differing views on this issue, and that the opposing position is said to be supported by Ex parte Lam, and possibly also by Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437. However, I agree with Mr John Basten QC that this argument is "based on a misapprehension as to the scope of the principle enunciated in these two cases". See generally J Basten QC, ‘Constitutional elements of judicial review’ (2004) 15 PLR 187 at 195-8. Where an applicant does not give evidence of what he or she would done had they been told that the Tribunal intended to rely upon particular information adverse to their case, there is no general or inflexible rule that procedural unfairness cannot be demonstrated.

53 That is not to say that evidence of this type is irrelevant, or even that the absence of such evidence may not be decisive in some cases. It is simply to say that there is no prerequisite that such evidence be given in all cases in which procedural fairness is alleged.

54 Whether or not there has been a denial of procedural fairness in any given case is largely dependent upon the particular facts of that case. Where the decision-maker has relied upon adverse information, without providing any opportunity to comment upon it, the question whether the decision is vitiated will depend upon a range of factors. These include the importance of the material to the ultimate decision, as well as the nature of that material. Some information is purely factual and entirely incontrovertible. There may simply be no answer to it. Other information may involve a combination of fact and opinion, and may be contentious. In relation to information of that kind, the denial of the opportunity to comment upon it may give rise to procedural unfairness. Moreover, some matters are so blindingly obvious as not to require any comment or submission. In such cases, the fact that there has been no opportunity to comment will be of little or no significance.

55 In the present case, the applicant’s claim centred around the involvement of his son-in-law with the relative who disappeared shortly after the explosion at the Central Bank in Colombo. It was that incident that triggered the harassment and threats that the applicant described, and that was at the forefront of his fear of persecution. Indeed, the Tribunal described the claims of the applicant and his wife as "integrally connected" with their son-in-law’s action in harbouring an LTTE member suspected of the bombing. The Tribunal rejected that claim for reasons that are not challenged in the proceeding before me.

56 It is true that the Tribunal noted, under the heading "The Applicant’s Case", that information had been provided about human rights abuses in Sri Lanka "including indiscriminate arrests of Tamils in Colombo". It was almost certainly in response to that information that the Tribunal summarised the country information to which I have previously referred. Apparently, the applicant’s material suggested that all Tamils were at risk of persecution in Colombo. It was hardly surprising that the country information upon which the Tribunal relied did not support that conclusion. Rather, it identified some Tamils who might be at risk in certain circumstances, particularly those groups suspected of links with the LTTE. The applicant did not meet that profile, and the Tribunal accordingly rejected any wide-ranging claim based solely upon his or his wife’s Tamil ethnicity.

57 In truth, however, that claim in that form was never really advanced. There is no sign of any such claim in the applicant’s statement to the delegate dated 17 July 1997. If any such claim was made during the course of the hearing before the Tribunal, it does not feature in the material before me. Certainly, it is barely recognised as a distinct claim in the Tribunal’s reasons for decision.

58 It is one thing to say that an applicant is not prevented from claiming that he or she was denied procedural fairness merely because no evidence of what might have been said in response to adverse information has been adduced. It is altogether another thing to say that a throwaway line by the Tribunal about a matter that assumed little, if any, significance in the applicant’s case, and only the most tenuous relevance in the Tribunal’s reasons, gives rise to jurisdictional error.

59 Mr Kissane submitted that, had the applicant been told about the country information, he could have argued that he did indeed fall within the category of those Tamils who were at risk because of his links to the LTTE by reason of his son-in-law’s involvement with the terrorist suspect. However, that submission hardly needed to be made. It would have been obvious to the Tribunal that the applicant’s case was essentially based upon imputed political opinion, stemming from his son-in-law’s activities. Yet that case had already been considered, and rejected.

60 If the applicant’s contention were that the country information was inaccurate, it would have been necessary for him to place before this Court some additional material to support that contention. The fact that he did not do so in the proceeding before me tends strongly to suggest that he knew that he could not controvert the general thrust of what was contained in that country information.

61 It follows that I accept Mr Kissane’s submission that the principles that govern this application are those set out in cases such as Stead, Aala and Dagli. However, I accept Mr Fairfield’s submission that neither the applicant nor his wife suffered any practical injustice by not being afforded the opportunity to comment upon the country information to which the Tribunal referred. Accordingly, there was no denial of procedural fairness. If necessary, I would have declined relief in any event in the exercise of my discretion. It follows that the application must be dismissed, with costs.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Counsel for the Applicants:	Mr B F Kissane

Solicitor for the Applicants:	Karthigesu P Aravindan

Counsel for the Respondents:	Mr C G Fairfield

Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	15 March, 21 April and 15 June 2004

Date of Judgment:	13 October 2004

1.	The application be dismissed.
2.	The applicants pay the first respondent’s costs.

Federal Court of Australia

Applicants M1015/2003 v Minister for Immigration & Multicultural & Indigenous Affairs (with Corrigendum dated 13 October 2004) [2004] FCA 1309 (13 October 2004)