conclusion
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.
40 In allowing the appeal, the High Court said at 145-6:
"The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker LJJ) in Jones v National Coal Board [1957] 2 QB 55, at p 67, in these terms:
"here is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it."
That general principle is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. True it is that an appeal to the Full Court from a judgment or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties of the primary judge, including the power to draw inferences of fact: Supreme Court Rules, O 58, rr 6 and 14. However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial."
41 The reasoning in Stead has never, so far as I am aware, been doubted. In Re Refugee Review Tribunal; Ex parte Aala (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:
"If a breach of the rules of natural justice is established an applicant would ordinarily be entitled to relief unless the Court was satisfied that the breach could have had no bearing on the outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; Re Refugee Review Tribunal; Ex parte Aala (supra) at 116-117. Accordingly, I reject the submission put by the solicitor for the Minister that this application must fail because of the failure on the part of the applicant to demonstrate by evidence that some practical unfairness accrued to him as a result of the procedures which were adopted. If the applicant was not informed of the case which he had to meet, that is sufficient to establish 'practical injustice' without the applicant having to prove what he would have done had he been informed of that case. Re Minister for Immigration & Multicultural Affairs, Ex parte Lam (2003) 195 ALR 502 does not decide otherwise: NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52, at [31]; VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 at [25]: Dagli v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 497 at [61]."
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) 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]:
"It is not clear whether the minister meant by this submission that in every case where the complaint is that there has been a denial of procedural fairness it is incumbent upon the complainant to lead evidence to explain in precisely what way he has been adversely affected by a particular omission. If this is what the minister means it should be rejected outright. There is no principle which is to this effect. Indeed, it is a submission which is contrary to well-established principle. In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 122… McHugh J said that: "once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because `[i]t is no easy task for a court … to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome'", citing Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145...
On the other hand, there no doubt will be cases where it is not clear what, if anything, a complainant could have done with the information which had not been provided to him. Many examples come to mind. One example is where the information is of a type which is difficult to controvert. If, in such a case, a court is unable to see how the complainant has suffered "practical injustice", then the complainant may be required to adduce evidence to explain why he has been unfairly treated. Another example may be found in the case of Re Minister for Immigration and Multicultural Affairs; Ex parte "A" (2001) 185 ALR 489 at 500-1."
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]:
"…the 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."
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]:
"We are satisfied that, applying the principles set out above, the relevant country information was required to be disclosed by the RRT to the first respondent, as it was the foundation for the RRT's conclusion that the first respondent 'has fabricated claims to exaggerate the harm that he might have suffered'. However, counsel for the Minister contended that the RRT's reasons for its decision reveal that it raised with the first respondent the questions of his low political profile and, of effective protection being provided by the authorities, and, in the course of doing so, it made it obvious to the first respondent that country information about political violence, which was used by the RRT, was relevant to his claims and should be addressed by him. We do not accept that submission. There is nothing in the reasons of the RRT or in the material to which we were taken that suggests that the relevant information, or the use to which it was put, was so obvious to the first respondent that he should have been aware that it was incumbent upon him to address that information: see Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 633 [131] per McHugh J, 664 [276] per Hayne J (with whom Gummow J agreed: see [171] at 640) and 670 [301] per Callinan J; cf Gleeson CJ at 610-612 [26]-[31], Gaudron J at 618 [64] and Kirby J at 653-655 [226]-[236]."
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) 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 appealto 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.