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.