FEDERAL COURT OF AUSTRALIA

DTK17 v Minister for Immigration and Border Protection [2018] FCAFC 170

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

THE COURT:

THE APPEAL

1    The appellant appeals a decision of the Federal Circuit Court of Australia: DTK17 v Minister for Immigration & Anor [2018] FCCA 746. The Federal Circuit Court dismissed an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (the IAA). The IAA had affirmed the decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the appellant a Safe Haven Enterprise visa (protection visa).

BACKGROUND

2    The appellant, a citizen of Afghanistan, arrived by boat in Australia on 6 December 2012. On 26 September 2016, he applied for a protection visa. By a statement accompanying his application, the appellant claimed to fear harm in Afghanistan on the basis of his Shia religion and Hazara ethnicity. He claimed that while he lived in Afghanistan, the Taliban had repeatedly attacked his village and on one occasion had shot him. The delegate refused the appellant’s application on 20 January 2017 and the matter was referred to the IAA for review five days later.

3    Submissions were made by the appellant’s representative to the IAA. Under the heading “New Information”, the submissions invited the IAA to have regard to several items of country information including a report published by the Department of Immigration and Border Protection entitled “Afghanistan: Hazaras Issues Paper”. The Issues Paper was dated July 2014. The submission to the IAA was to the effect that because the Issues Paper was written and prepared by the Department itself, it was before the delegate and so was not “new information” pursuant to s 473DC(1) of the Migration Act 1958 (Cth). Even so, it was said that the IAA could have regard to it if satisfied of the matters prescribed in s 473DD of the Act. The IAA did not accept the submission.

4    The IAA also considered whether there were “exceptional circumstances” which would justify it having regard to the Issues Paper, but concluded that the circumstances were not such that the IAA ought to have regard to that information in its decision.

5    The IAA affirmed the delegate’s decision to refuse the application for a protection visa, even though it accepted the appellant’s claims to have been shot by the Taliban and that he faced a real risk of serious harm should he return, specifically, to his “home area”. Ultimately, the IAA found, based on country information (but not the Issues Paper which it declined to consider), that the appellant could relocate elsewhere within Afghanistan and that the chance of persecution did not relate to all areas of the appellant’s receiving country.

6    The appellant relies on the argument that the Issues Paper was not “new information” for the purposes of s 473DD of the Act, as defined in s 473DC, because it was “constructively” before the Minister.

STATUTORY FRAMEWORK

7    Central to the issues on appeal are certain provisions within Pt 7AA of the Act, specifically Div 2 and Div 3, concerning the referral of fast track reviewable decisions to the IAA and the conduct of review by the IAA. Relevantly, ss 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD and 473DE of the Act are in these terms:

Division 2—Referral of fast track reviewable decisions to Immigration Assessment Authority

473CA        Referral of fast track reviewable decisions

The Minister must refer a fast track reviewable decision to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made.

473CB        Material to be provided to Immigration Assessment Authority

(1)    The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

(a)    a statement that:

(i)    sets out the findings of fact made by the person who made the decision; and

(ii)    refers to the evidence on which those findings were based; and

(iii)    gives the reasons for the decision;

(b)    material provided by the referred applicant to the person making the decision before the decision was made;

(c)    any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

(d)    the following details:

(i)    the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

(ii)    the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iii)    the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iv)    if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct—such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

(v)    if the referred applicant is a minor—the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

(2)    The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.

473CC        Review of decision

(1)    The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.

(2)    The Immigration Assessment Authority may:

(a)    affirm the fast track reviewable decision; or

(b)    remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.

Division 3—Conduct of review

Subdivision A—Natural justice requirements

473DA        Exhaustive statement of natural justice hearing rule

(1)    This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

(2)    To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

Subdivision B—Review on the papers

473DB    Immigration Assessment Authority to review decisions on the papers

(1)    Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Immigration Assessment Authority under section 473CB:

(a)    without accepting or requesting new information; and

(b)    without interviewing the referred applicant.

(2)    Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Immigration Assessment Authority.

Note:    Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).

Subdivision C—Additional information

473DC        Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)    the Immigration Assessment Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Immigration Assessment Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

473DD        Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Immigration Assessment Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Immigration Assessment Authority that, in relation to any new information given, or proposed to be given, to the Immigration Assessment Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

473DE        Certain new information must be given to referred applicant

(1)    The Immigration Assessment Authority must, in relation to a fast track reviewable decision:

(a)    give to the referred applicant particulars of any new information, but only if the new information:

(i)    has been, or is to be, considered by the Authority under section 473DD; and

(ii)    would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and

(b)    explain to the referred applicant why the new information is relevant to the review; and

(c)    invite the referred applicant, orally or in writing, to give comments on the new information:

(i)    in writing; or

(ii)    at an interview, whether conducted in person, by telephone or in any other way.

(2)    The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.

(3)    Subsection (1) does not apply to new information that:

(a)    is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or

(b)    is non-disclosable information; or

(c)    is prescribed by regulation for the purposes of this paragraph.

Note:    Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

BEFORE THE FEDERAL CIRCUIT COURT

8    The key issue before the primary judge, as expressed in the appellant’s amended application at ground 2 (ground 1 being abandoned), was that the IAA had misapplied s 473DE of the Act and failed to consider important information relied upon by the appellant.

9    The primary judge also had regard to the Issues Paper, where it says:

There is conflicting information on the broader security situation in Kabul. In January 2013 ANSO [Afghanistan NGO Safety Office] reported that attacks by insurgents in Kabul province (a much larger area than Kabul city where almost all the Hazaras live) have declined steeply steeply [sic] since 2010. Reflecting the decline in violence, the Danish Immigration Service report from March 2012 cites advice from NGOs based in Kabul that describe security in the capital as stable and under control. Other sources suggest that the general security situation in Kabul is extremely dangerous with a ‘very high threat of terrorist attack’. Although the reports note a high level of attacks in and around Kabul, most target government and international personnel and no reports suggest that Hazaras and Shias are being disproportionately targeted by these attacks.

(Citations omitted.)

10    In the Federal Circuit Court, the primary judge noted that the IAA accepted that there was a real chance of the appellant being seriously harmed if he returned to his home location as a result of his past history with the Taliban. However, the risks were localised to his home area and the real chance of persecution did not relate to all of the areas of his receiving country. On that basis, the IAA concluded that the appellant failed to meet the requirements of the definition of “refugee” in the criteria of s 36(2)(a) of the Act. In relation to complementary protection, the IAA was satisfied that the appellant would be able to find work, accommodation and access to services at other locations.

11    Before turning to Pt 7AA of the Act, the primary judge examined the following provisions of the Act. His Honour noted that s 65 of the Act provides a delegate with power whereby the Minister may grant a visa if satisfied of certain criteria and that if not so satisfied is to refuse to grant the visa and s 66(2)(c) of the Act expressly requires written reasons to be given (other than non-disclosable information) why the criteria were not satisfied or the provision prevented the grant of a visa. The primary judge further noted that:

    Section 54 of the Act imposes a mandatory obligation on the Minister, in deciding whether to grant or refuse to grant a visa, to have regard to all the information in an application.

    Section 55 of the Act permits an applicant to give the Minister additional relevant information and requires the Minister to have regard to that information in making a decision.

    Under s 56 of the Act, in considering an application for a visa, the Minister may get any information that he or she considers relevant, and provides that, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa. The Minister is also given a power to invite, orally or in writing, the applicant for a visa to give additional information in a specified way.

    Section 57 of the Act identifies “relevant information”, carving out under s 57(1)(b) of the Act information that is not specifically about the applicant or another person and is rather just about a class of persons of which the applicant or another person is a member (emphasis added). His Honour explained that this carves out country information and, accordingly, country information is not information of the type in respect of which the Minister is required to take the steps identified in s 57(2) of the Act. Section 58 of the Act provides the means by which the invitation must be made.

    Section 59 of the Act imposes an obligation on an applicant to make every reasonable effort to attend an interview and affords the Minister a power to obtain information from the applicant by telephone or in any other way. Section 62 of the Act subsequently provides that where the applicant, when invited to give additional information, does not give the information, the Minister is permitted to make a decision without taking any action to obtain additional information. The same consequence applies in relation to a failure to respond to an invitation to comment.

12    After discussing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 and Bushell v Secretary of State for Environment [1981] AC 75, his Honour noted that counsel submitted that records of the Department must be treated as being “before the Minister”, consistent with the principles identified in Peko-Wallsend.

13    The primary judge considered the subject matter, scope and purpose of the Act consistently with the principles enunciated by Mason J in Peko-Wallsend (at 45). However, his Honour said that it was apparent from s 66 of the Act that, whilst there may be reasons given that refer to evidence or other materials upon which findings were based, there may be other material before the decision-maker not referred to in the reasons. Equally, his Honour considered it to be apparent that there may be material that was before the Minister when the Minister made the decision under s 65 of the Act that has not been found by the Secretary to be relevant to the review and has not been included in the review material under s 473CB of the Act.

14    He concluded that the decision-making scheme under s 65 of the Act was one in which the applicant has the benefit of an obligation in s 57 of the Act: the Minister is required to give certain particulars to the applicant of the relevant information in a way in which the Minister considers appropriate under the circumstances and to ensure, as far as reasonably practical, the applicant understands why it is relevant to the consideration of the application and invite the applicant to comment on it.

15    His Honour considered that a similar scheme of obligation arises under s 473DE of the Act. Similar to the decision-making process under s 65 of the Act, there is a carve out of what is generally called “country information” by s 473DE(3)(a) of the Act. Counsel for the appellant identified the Issues Paper as being country information, which would not enliven or engage the obligation under s 57 and s 58 of the Act unless the requirements of procedural fairness in the particular case were found to otherwise require. There was no such suggestion made before the primary judge.

16    The primary judge noted that the breadth of the meaning of what is “before the Minister” was accepted by the appellant’s counsel as limiting the obligation that might arise under s 473DE of the Act or, for that matter, under s 57 or s 58 of the Act. He said (at [52]):

… The words “before the Minister”, in my opinion, should be given its plain ordinary and natural meaning in the context of the criteria when the Minister made the decision under s 65 of the Act. In my opinion, its plain ordinary meaning is a document or information that is physically before the Minister, not one in respect of which the Minister may have constructive knowledge because of the breadth of material held by the Department. Nor does “before the Minister” mean in the Minister’s control. Further, construction that includes the breadth of material held by the Department would, in my opinion, circumscribe the obligation under the scheme as identified under s 473DE of the Act and in relation to s 57 and s 58 of the Act. The subject matter, scope and purpose of the statute and the text of Part 7AA of the Act do not support a meaning of “before the Minister” that includes constructively before the Minister.

(Emphasis added.)

17    The primary judge concluded that the Issues Paper was correctly identified by the IAA as not being before the Minister when the decision was made under s 65 of the Act. Therefore, his Honour held that the IAA had been correct to assess it as new information in relation to the requirements of both limbs under s 473DD of the Act. The application before the Federal Circuit Court was dismissed.

GROUND OF APPEAL

18    The sole ground before this Court is:

1.    The primary judge erred by holding that the [IAA] was correct in law to find that [the Issues Paper] was not [sic] “new information” within the meaning of s 473DC of the [Act].

The primary judge ought to have held:

a.    the Issues Paper, being a publication of the Department in existence at the time of the delegate’s decision, was constructively “before” the delegate when the delegate made the decision, within the meaning of s 473DC(1)(a) of the Act;

b.    accordingly, the Issues [P]aper was not “new information” within the meaning of s 473DC(1) of the Act;

c.    accordingly, the IAA erred in law by holding that s 473DD of the Act prevented it from considering the Issues Paper, and so made a jurisdictional error by not considering the report which was relied on by the appellant.

APPELLANT’S CONTENTIONS

19    The appellant argues that it is a well-established principle of administrative law that reports created by a minister’s department, which relate to the subject matter of the decision, are taken to be before the decision-maker. The appellant relies on Peko-Wallsend (at 31), where Gibbs CJ said of a report by a Commissioner on the question of whether any Aboriginals were traditional owners of particular land, “[t]he material in the possession of Department must clearly be treated as in the possession of the Minister”. In the same case, Brennan J (at 66) referred to the speech of Lord Diplock in Bushell (at 95):

…Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the political head. The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise is to be treated as the minister’s own knowledge, his own expertise.

(Emphasis added.)

20    The appellant says Mason J’s (as his Honour then was) reference to “constructive knowledge” in Peko-Wallsend (at 45) reflects the same principle.

21    More recently, in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505, the Full Court (Kiefel (as her Honour then was) and Bennett JJ) said in relation to Mason J’s decision in Peko-Wallsend (at [80]):

Two observations may be made about his Honour’s reasoning. The factor being considered, to which the material is relevant, must be essential to the exercise of the discretion before any obligation to examine the most recent and accurate information can arise. That is to say it must partake of the nature of a relevant consideration in the sense we have discussed. And, as was elsewhere pointed out in Peko-Wallsend (at 31 and 45), the Minister was taken to have constructive knowledge of the information because it was on the departmental file (see also Videto v Minister for Immigration & Ethnic Affairs (1985) 8 FCR 167 at 179). Neither of those factors is present here. The Minister cannot be taken to have knowledge of the appellate court’s reasons. In any event, a consideration of remarks upon sentencing could not be said to be essential to the Minister’s exercise of discretion. The fact that he chooses to refer to them does not convert them to relevant considerations in the administrative law sense from which other consequences might flow. That is determined by reference to the statute.

(Emphasis added.)

22    Subsequently, in Secretary, Department of Sustainability and Environment (Vic) v Minister for Sustainability, Environment, Water, Population and Communities (Cth) (2013) 209 FCR 215, Kenny J (citing, inter alia, Bushell) said (at [81]-[83]):

81    The Parliament has entrusted the decision-making to be made under s 74B(1) to the Minister not in a personal capacity but as the holder of the office for the time being. Under the Australian system of government, a minister is accountable to the Parliament for the discharge of his ministerial duties and for the department for which he is responsible. In discharging ministerial duties, a minister necessarily obtains information and advice from the officers of his department: compare Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend) at 30-31 per Gibbs CJ, 45 per Mason J, 65-66 per Brennan J, citing Bushell at 95. In construing a statute creating administrative processes and in considering the lawfulness of an administrative action, account must be taken of “the practical realities as to the way in which administrative decisions involving judgments based on technical considerations are reached” at a governmental level: compare Bushell at 95 per Lord Diplock. In Bushell at 95, Lord Diplock also said in terms that are applicable not only in England but also in Australia (as well as New Zealand and Canada: see CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 at 200-201 per Richardson J; Whangamata Marina Society Inc v Attorney-General [2007] 1 NZLR 252 at 275 per Fogarty J; and Attorney-General (Canada) v Inuit Tapirisat of Canada [1980] 2 SCR 735 at 753 per Estey J for the Court):

Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the political head.

82    As the New Zealand Court of Appeal said in Daganayasi v Minister of Immigration [1980] 2 NZLR 130 at 142, “[t]his is part of the working of the ordinary governmental machinery” (per Cooke J, with whom Richmond P and Richardson J agreed): see also R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295 at 319 per Lord Slynn, 340 per Lord Hoffmann, 344 per Lord Clyde.

83    Whether, as Lord Diplock said in Bushell at 95, “[t]he collective knowledge … of the civil servants in the department and their collective expertise is to be treated as the minister’s own knowledge” for all purposes is not a question that need be answered here: compare R (on the application of National Association of Health Stores) v Department of Health [2005] EWCA Civ 154; New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 at 567-568. It is enough that, in the ordinary course, Parliament can be taken to have known and expected that the Minister would obtain information from his department when engaged in decision-making under the EPBC Act, including s 74B.

(Emphasis added.)

23    The appellant observes s 57(1)(b) of the Act plainly contemplates that a decision-maker will draw on knowledge about classes of persons, usually referred to as “country information”. The Explanatory Memorandum to the Migration Reform Bill 1992 (Cth), inserting s 57(1)(b) of the Act (though then otherwise numbered), noted that the section took into account the special nature of migration decision-making. The appellant submits that this is a reference to the common use of country information. Further, the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), which established the Pt 7AA fast track review process, expressly contemplated the use of “country information” in the equivalent section, s 473DE. Also Practice Direction 2: The giving of information to the IAA by the Secretary of the Department of Immigration and Border Protection, issued to cover the conduct of reviews by the IAA, makes clear that, in fact, the Department has assembled a body of country information available both to delegates and the IAA.

24    The appellant also relies upon the observations of Kenny J in VHAJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 80 (at [50]), where her Honour said:

In reaching this conclusion, it is helpful to consider other instances in which a similar question has arisen. One example is country information. It is usual for the Tribunal to have regard to information about the social, political, religious and other conditions prevailing in a country relevant to an applicant’s claim for refugee status, with a view to assessing whether other individuals who share his or her racial, religious, political, social or other attributes suffer treatment of a kind amounting to persecution on Convention grounds in that country. Sometimes information of this kind concerns religious practice, government elections, educational opportunities or other matters. This kind of country information is relevant to the Tribunal’s decision-making task only because the applicant falls within the class of persons who share an attribute, which, according to his or her claim, gives rise to a well-founded fear of persecution in the country concerned. In this circumstance, the information does not cease to be information “just about” a class of persons simply because it can also be characterised as information about religious practice, government elections or educational opportunities. It has been repeatedly held that information of this kind falls within s 424A(3)(a) of the Act: see, eg, Tharairasa v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 281 per Carr J; Pannasara v Minister for Immigration and Multicultural Affairs [2001] FCA 570 per Carr, Lindgren and Katz JJ; Akpata v Minister for Immigration and Multicultural Affairs [2001] FCA 402 per O’Loughlin J; Islam v Minister for Immigration and Multicultural Affairs [2001] FCA 430 per RD Nicholson J; Kola v Minister for Immigration and Multicultural Affairs [2001] FCA 630 per Mansfield J; and “W104/00A” v Minister for Immigration and Multicultural Affairs [2001] FCA 771 per Lee J. Contrast VEAJ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 678 at [36]-[38] and [43] per Gray J.

25    The appellant says these considerations require the conclusion that Parliament expected that decision-makers assessing asylum claims would draw on documents prepared by the Department about conditions in countries in connection with asylum claims; documents such as the Issues Paper. That being so, the appellant contends that the Issues Paper was constructively “before the Minister” within the meaning of s 473DC(1)(a).

26    Section 473DD did not, as the appellant submits, “stand in the way of” the IAA considering the Issues Paper. It is said the IAA erred when it decided not to have regard to that material and it applied a wrong test, the appellant says, found nowhere within the Act that the information was “new”, unless it can be shown that the “delegate considered it relevant or had regard to it” (as was recorded in the IAA’s reasons). Similarly, the appellant argues that the primary judge erred in holding (at [52]) that “before the Minister” means physically before the Minister. The appellant submits that there is appellable error in the reasons of the Federal Circuit Court due to the primary judge’s failure to find the IAA’s review miscarried because it made an error of law.

27    Orally, the appellant stressed that the IAA, having invited a submission for further material and having received a submission, had to deal with that submission according to law. The appellant referred the Court to the Practice Direction to this effect:

…

2.    Where the written statement of a decision to refuse a protection visa that is referred to us [the IAA] for review contains a reference to a document comprising country of origin information, then:

(a)    if the document is available to us in CISNET - the document in CISNET will be taken to be review material given to us by you [Secretary of the Department] pursuant to paragraph 473CB (1)(c) of the Act; or

(b)    if the document is not available to us in CISNET - you must give the document to us in electronic form along with any other material that is in your possession or control and is considered (at the time the decision is referred to us) to be relevant to the review.

28    Counsel for the appellant stressed in oral submissions that the Issues Paper was plainly created to assist decision-makers when considering the circumstances of Hazaras, which is made clear by its overview:

The purpose of this paper is to provide an overview of the Hazara Shiite ethnic minority in Afghanistan. The paper provides information on living conditions and security for Hazaras in the capital Kabul…

29    The appellant also made submission concerning the “materiality” of the IAA’s error. The Issues Paper included a passage about Kabul, identifying information on the broader security situation which “conflicted with” the safe relocation findings made by the IAA (albeit that the Issues Paper was produced three years earlier than the Issues Paper on which the IAA relied). It is clear, the appellant says, that the Issues Paper provided country information that could have laid a foundation for the IAA to find that the appellant had a well-founded fear of persecution elsewhere in Afghanistan (such as Kabul as the IAA suggested) or that it was not reasonable in the relevant sense or practical for him to relocate to such a location.

30    We accept that it may be assumed the IAA did have access to the Issues Paper in that it could have sourced and relied upon it. That does not mean it did do so, particularly, when the material it did rely upon by way of country information was substantially more current than the Issues Paper.

MINISTER’S CONTENTIONS

31    The Minister’s submissions commence by focusing on the nature of the Pt 7AA fast track review process. The Minister notes the obligation of the IAA is to review a fast track reviewable decision referred to it by the Minister pursuant to s 473CA, set out above (at [7]). The IAA’s duty is to consider the application for a protection visa afresh (or de novo) and to determine for itself whether or not it is satisfied that the criteria for the grant of the protection visa have been met. This has been reinforced in numerous cases, including Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481 per Gageler, Keane and Nettle JJ (at [17]).

32    However, the Minister further notes that the manner in which the IAA is to conduct that hearing de novo is without accepting or requesting new information and without interviewing the referred applicant pursuant to s 473DB. The review material provided by the Secretary of the Department pursuant to s 473CB(1) is expressly limited.

33    The Minister submits the IAA was correct to conclude the Issues Paper did not form part of the review material. Alternatively, the Minister contends it is safe for the Court to infer from the fact that it has not been included in the review material or referred to in the reasons, that neither the Secretary nor the Department considered its content to be relevant to the review. While that is one possibility, another equal possibility which occurs to the Court is that the delegate was unaware of the Issues Paper (that is, unaware in a true, rather than “constructive” sense).

34    The Minister contends that even if the IAA was wrong to find that the Issues Paper was not before the delegate when she made her decision under review and, therefore, was not “new information” as defined in s 473DC(1), any error by the IAA in so concluding could not be jurisdictional. As recently observed by the High Court in Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780 per Kiefel CJ, Gageler and Keane JJ (at [24]), there could not, in those circumstances, be:

… a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it.

There will not be jurisdictional error solely because a decision-maker has made an error of law.

35    The Minister contends that the question is not whether s 473DD of the Act “stood in the way” of the IAA considering the Issues Paper as contended by the appellant. Rather, it is whether the Act required the IAA to do so. To the contrary, the Minister contends that the IAA was simply not empowered to consider the Issues Paper. It must be new information before there is a possibility of such a document being considered. Even the appellant contends that the Issues Paper is not “new information”. The IAA can only examine material in addition to the review material if it is “new information”. The primary argument for the appellant is that the material was not “new information”.

CONSIDERATION

New information?

36    We accept the Minister’s contention that the authorities relied upon by the appellant deal with different statutory schemes from the unique framework established under Pt 7AA of the Act. The issue arising in many of the cases relied upon by the appellant was whether the decision-maker failed to take into account a mandatory relevant consideration. That question does not arise in this case. Nothing in Pt 7AA of the Act established a mandatory requirement for the IAA to have regard to a document such as the Issues Paper. It follows that even if the contention is correct that the Issues Paper was not “new information”, it was not information which the IAA had to examine any more than the delegate herself was mandatorily required to consider the Issues Paper simply by reason of the fact that it was authored by the Department. In fact, s 54 and s 55 of the Act establish, relevantly to this appeal, that the Act only requires the Minister, in deciding whether or not to grant or refuse to grant a visa, to have regard to “all information in the application”. Information is “in an application” if it is set out in the application or in a document attached to the application when it is made or that is given under s 55 of the Act: s 54(2) of the Act. Section 55 provides that a visa applicant may give the Minister “any additional relevant information” and the Minister “must have regard to that information in making the decision”. Neither s 54 nor s 55 requires the Minister to consider country information solely because it was authored by the Department.

37    For the purpose of s 473DC(1)(a) the Secretary is required to make available all documents or information “before” the Minister. The primary judge was correct to conclude that this was a narrower concept than all materials in the “control” of the Minister and to distinguish the concept from “possession” as referred to by Gibbs CJ in Peko-Wallsend. We would accept the contention for the Minister that the appellant’s construction is not supported by the relevant statutory context, including ss 54, 55, 473CB and 473DB of the Act, as there is nothing in those provisions suggesting that a country of origin report prepared by the Department is sufficient for it to be characterised as a document “before” the decision-maker when making the decision under s 65 of the Act. The appellant’s construction of “before the Minister” could have the effect that any document published on the internet by the Department on a matter entirely unrelated to the case at hand could be regarded as being “before” the decision-maker. This is not a result which Parliament should be taken to have intended.

38    The expression “before the Minister” also appears at s 473DA(2) of the Act. The Explanatory Memorandum to the Migration Bill 2014 says that the purpose of s 473DA(2) is to put beyond doubt that the IAA is not required to give a referred applicant any material that was before the Minister for comment. The Explanatory Memorandum states this is because under s 57(2) of the Act and in relation to a fast track decision, an applicant would already have been provided an opportunity to comment on relevant information that the Minister considered was the reason, or part of the reason, for refusing to grant a visa. The fact that the words “before the Minister” in s 473DA(2) refer only to material literally before the Minister would suggest that the same words appearing in s 473DC(1)(a) ought be read in the same way. This accords with the primary judge’s conclusion (at [52]) as to the meaning of the words “before the Minister” as meaning “physically before the Minister, not one in respect of which the Minister may have constructive knowledge because of the breadth of material held by the Department”. His Honour concluded, rightly in our opinion, that “before the Minister” does not mean “in the Minister’s control”.

39    The only power conferred upon the IAA to get or seek out factual information is that which is contained in s 473DC(1) relating to new information. Section 473DC(3) confers a more specific power to invite a person to give new information orally or in writing.

40    Insofar as it is contended by the appellant that the Practice Direction, because it invites submissions from referred applicants, required the IAA to have regard to a submission, s 473FB(3) indicates that non-compliance with such an obligation does not itself amount to a jurisdictional error. That subsection states, relevantly, that “non-compliance with any direction does not mean that the Authority’s decision on a review is an invalid decision”.

Materiality

41    The High Court (Kiefel CJ, Gageler and Keane JJ) has recently emphasised in Hossain (see [28]-[31]) the relevance of an assessment of materiality when considering a failure by a decision-maker to comply with a statutory condition. As was observed (at [30]), the threshold of materiality will not ordinarily be satisfied where there is a failure to comply with a condition if compliance would have made no difference to the decision in the circumstances. Further, even if the Issues Paper was before the IAA, it could not have affected the outcome.

42    The appellant’s submissions to the IAA read (at [8]):

In Khas Uruzgan, the vulnerability of the Hazara population is exacerbated by the small number of Hazaras remaining in the district after decades of persecution. The [Issues Paper] stated that ‘Uruzgan is a mainly Pashtun province... Today only Gizab and Khas Uruzgan districts have Hazara minorities - about 25% in each case’. The Applicant is physically identifiable as an ethnic Hazara. He possesses the distinctive Central Asian facial characteristics of the Hazara people which include high cheekbones, a sparse beard and epicanthic eyefolds. Further, he is fluent in the Hazaragi language.

(Citations omitted.)

43    The six-page document that the IAA was given referred only in two parts (at [8] and in fn 14) to the Issues Paper. Paragraph 8 contains a mixture of argument and factual information. The part that refers expressly to the content of the Issues Paper would amount to factual information, while the part of [8] that repeats points that were made earlier as to the appellant’s characteristics, physical or otherwise, in taking issue with the delegate’s findings, does not amount to information. Footnote 14 refers only to four pages in the Issues Paper, that is, pp 34-37. The submission that was made to the IAA did not refer to that part of the Issues Paper upon which reliance is placed by the appellant in these proceedings, that is, the first paragraph of the report, which deals solely with the security situation in Kabul.

44    The IAA said (at [36]):

Beyond Islamic State, I accept other insurgent groups, including the Taliban, are highly active and have the capability to orchestrate serious attacks in Kabul, but based on the information above, I am not satisfied these groups are seeking to target Hazara Shias for reasons of their ethnicity and/or religion within Kabul.

45    The information to which the IAA referred in reaching this finding comprised more recent and up-to-date country information, namely, reports published in 2015 and 2016. The point that is made in [36] is essentially the same point that is made in the last two sentences in the relevant paragraph upon which the appellant relies:

Other sources suggest that the general security situation in Kabul is extremely dangerous, with ‘a very high threat of terrorist attack’. Although the reports note a high level of attacks in and around Kabul, most target government and international personnel and no reports suggest that Hazaras and Shias are being disproportionately targeted by these attacks.

(Citations omitted.)

46    Had the IAA considered that part of the Issues Paper, it would have made no difference to the outcome of the review and, for that reason, even if there were any error of law (which we reject), not only would it be an error within jurisdiction, but it would also be an error which lacked materiality in the sense discussed by the High Court in Hossain.

CONCLUSION

47    For all these reasons, the appeal must be dismissed with costs.

Associate:

Dated:    10 October 2018