FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the costs of the first respondent, as agreed or taxed.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This appeal is from the judgment of the Federal Circuit Court of Australia given on 6 July 2017 quashing the decision of the Immigration Assessment Authority (the Authority) made on 16 August 2016. The Authority had affirmed a decision of a delegate of the Minister to refuse to grant to CRY16 (the respondent), a Safe Haven Enterprise (Class XE) Subclass 790 visa (SHEV).

2    The respondent is a citizen of Lebanon. On 17 January 2016, he lodged a valid application for a SHEV.

3    On 11 July 2016, a delegate of the Minister for Immigration and Border Protection (the delegate) made a decision, pursuant to s 65 of the Migration Act 1958 (Cth), to refuse to grant a SHEV to the respondent.

4    The delegate accepted certain basic aspects of the respondent’s claims: that he was born in Tripoli, that he is a Sunni Muslim and that he had been issued with a Lebanese passport which he used to leave his home country. However, the delegate rejected the respondent’s claims for protection. The delegate found that the respondent was not “a credible witness”. The delegate did not accept the respondent had been previously approached by Hezbollah to work for them or that he had ever been directly targeted or threatened by them. The delegate found that the respondent would not face a real chance of persecution or real risk of significant harm upon return to Lebanon.

5    On 16 August 2016, the Authority affirmed the delegate’s decision but on a different basis.

6    The Authority found the respondent’s fear of harm from sectarian violence did not relate to all areas of Lebanon and that he could relocate to Beirut where he would not face a real chance of persecution for any Refugees Convention reason (cf s 5J(1)(c)). This meant that the respondent was not a refugee: s 5H(1). Similarly, in relation to the respondent’s claims for complementary protection, the Authority found that, as a Sunni, the respondent faced a real risk of significant harm in his place of habitual residence but that the real chance of harm did not extend to all areas of Lebanon, namely to Beirut. He could reasonably relocate to Beirut where he would not face a real risk that he will suffer significant harm (cf s 36(2B)(a)).

7    On judicial review of the Authority’s decision, the primary judge made orders quashing the decision of the Authority and requiring it to redetermine the application according to law. The primary judge also ordered the Minister to pay the present respondent’s costs.

8    The issue in the appeal is whether there was appellable error on the part of the primary judge in finding jurisdictional error on the part of the Authority to be established. His Honour concluded that the Authority had acted unreasonably in not considering exercising its statutory powers under Pt 7AA of the Migration Act 1958 (Cth) to give the respondent an effective opportunity to address the issue of relocation that the Authority found dispositive, in circumstances where the delegate had not considered the issue of relocation.

The statutory provisions

9    The relevant provisions are in Pt 7AA of the Migration Act.

10    By s 473CB of the Migration Act:

(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;

…

(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.

11    By s 473CC:

(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.

12    Division 3 was in the following terms:

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 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 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 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 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 Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

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

473DF Invitation to give new information or comments in writing or at interview

(1)    This section applies if a referred applicant is:

(a)    invited under section 473DC to give new information in writing or at an interview; or

(b)    invited under section 473DE to give comments on new information in writing or at an interview.

(2)    The information or comments are to be given within a period that is prescribed by regulation and specified in the invitation.

(3)    The Immigration Assessment Authority may determine the manner in which, and the place and time at which, an interview is to be conducted.

(4)    If the referred applicant does not give the new information or comments in accordance with the invitation, the Immigration Assessment Authority may make a decision on the review:

(a)    without taking any further action to get the information or the referred applicant’s comments on the information; or

(b)    without taking any further action to allow or enable the referred applicant to take part in a further interview.

13    Division 5 of Part 7AA was in the following terms:

Division 5—Exercise of powers and functions by Immigration Assessment Authority

473FA How Immigration Assessment Authority is to exercise its functions

(1)    The Immigration Assessment Authority, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).

Note:    Under section 473DB the Immigration Assessment Authority is generally required to undertake a review on the papers.

(2)    The Immigration Assessment Authority, in reviewing a decision, is not bound by technicalities, legal forms or rules of evidence.

473FB Practice directions

(1)    The President may, in writing, issue directions, not inconsistent with this Act or the regulations as to:

(a)    the operations of the Immigration Assessment Authority; and

(b)    the conduct of reviews by the Authority.

(2)    Without limiting subsection (1), the directions may:

(a)    relate to the application of efficient processing practices in the conduct of reviews by the Immigration Assessment Authority; or

(b)    set out procedures to be followed by persons giving new information to the Authority in writing or at interview.

(3)    The Immigration Assessment Authority must, as far as practicable, comply with the directions. However, non-compliance with any direction does not mean that the Authority’s decision on a review is an invalid decision.

(4)    If the Immigration Assessment Authority deals with a review of a decision in a way that complies with the directions, the Authority is not required to take any other action in dealing with the review.

(5)    The Immigration Assessment Authority is not required to accept new information or documents from a person, or to hear or continue to hear a person at an interview, if the person fails to comply with a relevant direction that applies to the person.

The decision of the Authority

14    As we have said, the Authority found that the respondent may face a real chance of harm from “sectarian violence” in his place of habitual residence (cf s 5J(1)(a), (b)). However, the Authority also found that respondent’s fear of harm from sectarian violence did not relate to all areas of Lebanon. The Authority found that the respondent could relocate to Beirut where he would not face a real chance of persecution for any Refugees Convention reason (cf s 5J(1)(c)). This, in turn, meant that the respondent was not a refugee: s 5H(1).

15    In relation to the respondent’s claims for complementary protection, the Authority found that the respondent faced a real risk of significant harm in his place of habitual residence but that he could reasonably relocate to Beirut where there would not be a real risk that he would suffer significant harm (cf s 36(2B)(a)).

The decision of the Federal Circuit Court

16    The essential reasons of the primary judge were as follows.

17    First, the primary judge noted that the Authority made a decision adverse to the respondent, but on a different basis to the decision made by the delegate. While the delegate found that the respondent was not at risk, the Authority concluded, at [29]: “I accept the applicant may face a real chance of harm from sectarian violence in his home neighbourhood.” As the Authority had accepted that there was a real chance of serious harm to the respondent it was also required to determine whether or not the chance of harm related to all areas of the country (as required by s 5J(1)(c) of the Migration Act), and whether or not it was reasonable for the respondent to relocate, within the meaning of s 36(2B).

18    The primary judge then said there was no discussion in the decision of the delegate as to the potential relocation of the respondent within Lebanon. In short, the primary judge said, there was nothing in the material in the Court Book to indicate that at any time the respondent was on notice that the decision-maker would be considering whether or not he could relocate within Lebanon in order to avoid the harm that he feared.

19    The primary judge said, at [13], two points arose in the case. The first was whether or not the respondent should have been given notice of the location to which it was thought that he may relocate, in order to enable him to comment upon it; and secondly how (if at all) this could be achieved within the strictures of Pt 7AA.

20    The primary judge concluded first, at [15], that if an applicant was expected to prove a negative, that is that they cannot relocate to anywhere else in a country or region, then it would place an applicant in an almost impossible situation if they were not given any notice of where the decision-maker was considering that they could relocate. The primary judge was therefore persuaded that the respondent had not been accorded a reasonable opportunity to be heard in the context of this particular case, based upon the principles underpinning the decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152, as applied in SZQPY v Minister for Immigration and Border Protection [2013] FCA 1133.

21    The primary judge then noted that the rules of procedural fairness do not apply to the Authority, save to the extent provided for in the statute. Nonetheless, it had been held by Driver J that the statutory discretions of the Authority must be exercised reasonably: DZU16 v Minister for Immigration and Border Protection & Anor [2017] FCCA 851; 321 FLR 306 (at [120]), relying upon Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332. Thus, his Honour found, “it was unreasonable for the Authority not to consider giving the applicant an effective opportunity to address the issue that it found dispositive” (at [122]). As a result, the primary judge concluded that the Authority had acted unreasonably in the relevant sense.

22    The primary judge then went on to consider what the Authority did or should have done and said:

21.    In this case the IAA has not considered whether the applicant had any opportunity to be heard on the key issue before the delegate. Had it done so, it would have been apparent that no opportunity to be heard on the relocation issue was provided. At this point it was necessary for the IAA to consider whether ss.473CB and 473CD (sic) were properly engaged and were suitable processes in the context of the case, or whether the power to remit to the delegate should be exercised.

22.    As a result, having regard to the conclusions in DZU16, I find that jurisdictional error has been established and set aside the decision of the IAA. …

The Minister’s notice of appeal

23    The Minister’s notice of appeal, dated 27 July 2017, contained the following ground and particulars:

1.    The trial judge erred in concluding that the second respondent (the Authority) made a jurisdictional error by “act[ing] unreasonably” by not giving the first respondent (the referred applicant) an “effective opportunity” to address the issue that it found “dispositive” or “potentially dispositive”, and by failing to exercise one of two available “options” to give such an effective opportunity.

Particulars

a.    The trial judge found (at [6]) that there was “nothing in the material in the court book to indicate that at any time the applicant was on notice that the decision maker would be considering whether or not he could relocate within Lebanon in order to avoid the harm he feared”.

b.    His Honour erred in so finding. The referred applicant was on notice, including (without limitation) from the visa application form, that relocation was an issue that may arise on his visa application. Indeed, in response, the referred applicant made claims as to why he would not be able to relocate within Lebanon.

c.    On the basis of this finding, the trial judge concluded (at [16]) that the Authority “acted unreasonably” by not giving the referred applicant “effective opportunity” to address the issue that it found “dispositive” or “potentially dispositive”.

d.    However, even assuming that the trial judge’s factual finding (see a. above) was correct, his Honour erred in so concluding. Giving a person an opportunity to be heard on a proposed decision is an aspect of the natural justice hearing rule. His Honour concluded (at [12]) that Part 7AA “sets out ... a complete statement of the rules of procedural fairness that apply” (which was correct with respect to the natural justice hearing rule). And his Honour failed to identify any provision of that code that the Authority failed to comply with. The Authority did not fail to comply with any provision of that code.

e.    On the basis of this finding (at a. above) and conclusion (at c. above), the trial judge concluded (at [19]) that the Authority had two “options” to give an “effective opportunity” for the referred applicant to address the possibility of him relocating to Beirut: (i) “to consider exercising its discretions under ss47DC and 473DD to seek out that further information”; or (ii) “to consider setting aside the decision of the delegate and remitting the matter to the delegate to determine afresh”.

f.    Insofar as the trial judge concluded that the Authority made a jurisdictional error by not exercising its power (or considering whether to exercise of its power) under section 473DC(1) or (3) to “seek out” further possible claims, objections or information from the referred applicant as to the possibility of relocation to Beirut, his Honour erred. In particular, that conclusion is inconsistent with the declaration by Parliament in section 473DC(2) of the Act that the Authority does not have a duty to get, request or accept any new information “in any ... circumstances”. And section 473DD confers no power on the Authority to “seek out” any further claims, objections or information.

g.    Insofar as the trial judge concluded that Authority made a jurisdictional error by not “setting aside” the delegate’s decision and “remitting the matter to the delegate to determine afresh” (or considering whether to exercise such a power), his Honour erred. No such power exists. The Authority’s only dispositive powers are those conferred by section 473CC(2), and no such power is conferred. In particular, the Authority has no power to set the delegate’s decision aside. And while the Authority may under section 473CC(2)(b) remit the decision for reconsideration in accordance with certain directions or recommendations, its power to make such directions or regulations is circumscribed by regulation 4.43 of the Migration Regulations 1994; it has no general power to remit the matter to the delegate to “determine” a visa application “afresh”.

h.    The trial judge also held (at [20]) that “[t]he provisions of ss 473CB and 473CD provide an opportunity for the IAA to obtain submissions and evidence, however, confined the use of that process to exceptional circumstances”. His Honour thereby erred. Section 473CB confers no power on the Authority to get new information; it merely imposes an obligation on the Secretary to give certain material (“review material”) to the Authority, which power is not conditioned by any assessment of “exceptional circumstances”. And there is no section 473CD in the Act. Section 473DD(a) provides that one condition to the Authority considering (cf. getting: see section 473DC) new information is that the Authority is satisfied that there are exceptional circumstances to justify doing so.

i.    Finally, the trial judge stated (at [20]) that “it could well be considered to be an ‘exceptional circumstance’ when issues arise, as a result of findings on the review, concerning which an applicant has not been given notice or been heard”. Insofar as that statement represents a conclusion by the trial judge as to when “exceptional circumstances” would justify considering new information, his Honour erred. Whether there are exceptional circumstances to justify considering any new information under section 473DD(a) is a question of fact for the Authority (not the Court) to consider. No such question arose in this case.

24    There was no notice of contention.

The submissions of the parties

25    The Minister submitted that one relevant effect of s 473DA(1) was that the scope and the criteria for the exercise of the discretionary powers in ss 473DC(1) and (3) were not informed by any underlying obligation to put an affected person on notice of the critical or important issues upon which an administrative decision-maker’s decision may turn, such as would arise under normal principles of procedural fairness. That would include the respondent’s opportunity to be put on notice of the fact that the Authority may find that he could relocate to Beirut. This view was said to be supported by s 473DB(1) and s 473DC(2).

26    The Minister submitted that Pt 7AA did not contain an equivalent of the duty in s 425(1). The Minister referred to DBE16 v Minister for Immigration and Border Protection [2017] FCA 942, particularly at [59] and [65], where Barker J held:

I accept the Minister’s submissions that no denial of natural justice arises from the mere fact that the Authority made different findings to those findings made by the delegate on the limited merits review system available under the fast track scheme. The Pt 7AA merits review system appears to operate on the understanding that the reviewer reconsiders all facts and so may make factual findings different to those of the original decision-maker. There is nothing in Pt 7AA of the Migration Act that suggests that the Authority is unable to make findings adverse to an applicant where the delegate made a finding favourable to the applicant in relation to the same issue. In this regard, there is force in the Minister’s submission that the principles in SZBEL v Minister for Immigration (2006) 228 CLR 152; [2006] HCA 63 do not apply to reviews under Pt 7AA of the Migration Act. I note, without needing to interrogate the proposition further, that the Federal Circuit Court has accepted the proposition in such decisions as DZU16 v Minister for Immigration & Anor [2017] FCCA 851 at [101]; AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 at [11]-[12]).

…

Consequently, it would seem to follow that there was no obligation on the Authority to give any notice to the appellant that it may find that he had not been the victim of past extortion and to invite him to comment on this possibility, either in writing or at an interview. Of course, good and reliable decision-making might be enhanced if a decision-maker adopted this course and sought comment. Its ability to do so will, however, be governed by the constraints imposed by s 473DC and s 473DD. But on the facts of this case, there is no basis to conclude that the Authority failed to exercise the decision-making task entrusted to it by the Act, and thereby committed a jurisdictional error.

27    The Minister submitted that, in the light of s 473DA, the only relevant question was whether Pt 7AA required the Authority to give such notice to a referred applicant. The Authority’s obligations and powers were those stated expressly in Pt 7AA. Insofar as the primary judge held otherwise at [16]-[17], [18] and [21], his Honour erred.

28    The power in s 473DC(3)(b) was purely discretionary and the Authority was not under a duty to consider the possible exercise of that power. This was consistent with the broader context in which the provision appeared, which included not only s 473DC(2) but also s 473CC(2) which conferred limited decision-making powers on the Authority. The Authority did not have the power to substitute its own decision for that of the Minister.

29    The Minister referred also to: s 473DA(1) which, he submitted, supplied the words of necessary intendment to exclude general law principles of procedural fairness; s 473DB(1) which meant there was no obligation on the Authority to invite a referred applicant to a hearing and no automatic right for him or her to have further information or submissions considered; s 473DE(1) which constituted a clear legislative intention not to provide a referred applicant the right to respond to country information that may be adverse; and s 473FA(1) which made no reference to procedural fairness.

30    The restrictive system of merits review was one in which the Authority may (and in many cases must) proceed to make a decision without any input from a referred applicant. Section 473DB(1) suggested that the Authority was empowered to seek information or comment from a referred applicant only to the extent permitted by express provision in Pt 7AA.

31    If there was no duty imposed on a decision-maker to consider the exercise of a discretionary power, the principles of legal unreasonableness could only have application in cases where the decision-maker had given consideration to exercising the power, and decided to exercise it in a manner adverse to an affected party. In the present case there was not a decision actively made by the Authority against the respondent, the affected party. There was no evidence to suggest that the Authority exercised, or even considered exercising, its power in s 473DC. Given the presence of s 473DC(2), the Authority’s non-engagement with s 473DC(3) meant that it could not be said that it exercised that power in a legally unreasonable manner.

32    The primary judge in the present case was wrong to follow DZU16 and made an appellable error by holding that the Authority’s failure to consider exercising its discretionary power in s 473DC(3) to invite the respondent to comment on the dispositive issues was legally unreasonable.

33    The Minister submitted that Pt 7AA did not have as one of its objectives the provision of procedural fairness beyond the extent to which its particular provisions provided it to a referred applicant. For that reason, it was erroneous to approach questions of reasonableness by way of expectations of such procedural fairness. So it would be a mistake to assume that one of the purposes of s 473DC, or the scheme more broadly, was to provide a fair hearing. On the face of the scheme its objectives were to provide efficient and quick review.

34    Decisions which were referred to the Authority under s 473CA were necessarily cases in which the visa had been refused by a delegate at the end of a process that included a codified regime of procedural fairness. The reviewed applicant would not be any worse off if the review went against him or her, including if it went against him or her because of findings that were different to the findings that the delegate made.

35    The outcome in this case was not outside the scope of decisional freedom. The respondent, the Minister submitted, had no inkling, and no way of having an inkling, that the Authority was going to accept the case he had put to the delegate, but then decide against him on a different basis. In an ordinary sense one could describe it as an unfair outcome, but it was a legally unreasonable outcome only if one assumed that the achievement of a procedure whereby the referred applicant had the opportunity to address the dispositive issue constituted an objective or a value that underpinned the statutory scheme, which it did not.

36    In terms of procedure, the Minister submitted that in the statutory scheme, including the scope of the review, the destination the review can lead to and the statutory provisions, especially s 473DA, there was not an implied obligation on the Authority to tell the person what the critical issues were. It should not be assumed that the purpose of s 473DC was to do with procedural fairness.

37    The respondent submitted that the primary judge had concluded that jurisdictional error was demonstrated by the Authority’s failure to turn its mind to whether the respondent should be given an effective opportunity to address the potentially dispositive issue that had not previously been raised. The primary judge found that the Authority had not considered whether the respondent had any opportunity to be heard on the key issue before the delegate and as a consequence had not considered either of two options that were open to it in order to provide such an opportunity. The first option was to consider the exercise of its statutory discretions under ss 473DC and 473DD to seek out further information directed at the dispositive issue. The second option was to consider setting aside the decision of the Authority and remitting the matter to the delegate to determine afresh. The question of procedural fairness assumed contextual, rather than direct, significance in the primary judge’s reasons for judgment.

38    The respondent submitted that the effect of s 473DA(1) was to identify the powers that were available to the Authority to achieve the objective of observing and discharging, in respect of each referred applicant, the requirements of the natural justice hearing rule. It did not entirely displace or exclude procedural fairness requirements but identified and codified the statutory means by which such requirements may be given effect. It was therefore not correct that the scope and criteria for the exercise of the discretionary powers in ss 473DC(1) and (3), for example, were not informed by obligations fundamental to the natural justice hearing rule, including the obligation to put an affected person on notice of the critical or important issues upon which an administrative decision-maker’s decision may turn. The clear words or necessary implication to exclude the requirements of natural justice were absent.

39    The respondent submitted that what was notable about s 473CD was that it provided the means by which the Authority could obtain information or documents that were not before the primary decision-maker and which the Authority considered may be relevant. The range of circumstances in which the power may be exercised included a means of obtaining information directed to issues which had arisen or been identified for the first time on the fast track review. This included the present case where the Authority departed from findings made by the delegate and introduced the new paradigm of internal relocation. Other circumstances would be where the Authority became aware of a significant change of conditions in the referred applicant’s country of origin since the date of the primary decision under s 65. The Authority was making a fresh decision and was not restricted to the correction of error in relation to the issues considered by the delegate to be determinative: BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169.

40    The Authority had power under s 473DC to get any documents or information that it considered may be relevant, including by inviting the referred applicant or another person to give such information in writing or at an interview. Even accepting that the power was qualified by the requirements of s 473DD, the power was nevertheless available in circumstances where a new issue arose on which the referred applicant had not yet had any opportunity to be heard. It was no answer to say that the Authority did not have a duty to get, request or accept any new information (s 473DC(2)). A failure to consider whether to exercise the powers may nevertheless be legally unreasonable and give rise to jurisdictional error. The respondent referred to other provisions in the Migration Act which expressly provided that the Minister did not have a duty to consider whether to exercise the relevant power.

41    If the Authority was not prepared to exercise its power to get new information from the respondent on the issue of internal relocation to Beirut, it should have considered how this affected the exercise of its dispositive powers under s 473CC. In circumstances where the Authority did not agree with the delegate’s findings in relation to risk of serious or significant harm, the Authority could and should have considered whether it was appropriate to remit the decision for reconsideration, rather than proceed to affirm the delegate’s decision on a different basis.

42    The respondent submitted that no provision clearly displaced the legislature’s intention that a discretionary power, statutorily conferred, will be exercised reasonably. In particular, s 473DC(2) did not have this effect. Legal reasonableness in a particular case may require the Authority to act or to refrain from acting, or to consider whether to act or refrain from acting, in a particular manner. Such a result was not inconsistent with or antithetical to the absence of a duty. The Authority had available to it a collection of powers, including the power under s 473DC(1), to get from the respondent new information and/or documents, the power under s 473DD to consider any new information (including new information obtained from the respondent), and the power under s 473CC(2) to remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as were permitted by regulation. The Authority did not exercise any of these powers, nor did it even turn its mind to their possible exercise.

43    Where the question of relocation arose for the first time before the Authority and was a matter that comprehended issues of reasonableness of relocation to a particular place in the respondent’s particular circumstances, the Authority, by failing even to turn its mind to the question of whether it should exercise any one or more of the powers available to it under Pt 7AA to invite comment from the respondent, was itself acting unreasonably. This conclusion followed either from a lack of any evident and intelligible justification for the decision, or from the exposure of an underlying error in the nature of a misapprehension about or ignorance of the powers that were available to the Authority.

44    The respondent submitted the real issue was the question whether, if a new issue arose for the first time before the Authority, the Authority should consider whether to exercise its available powers to invite the referred applicant to give new information in relation to that issue or, more generally outside the framework of information, to invite a response or provision of submissions. One available source of power was s 473DC(1) or (3).

45    A second aspect to that was whether, in undertaking that consideration, the Authority should consider whether or not the referred applicant had had a reasonable opportunity to be heard on that issue before the delegate. The starting point was that Pt 7AA provided for a referred applicant to be heard on the issues and that that generally took place before the delegate.

46    The regime was not set up to deny an opportunity to be heard to a referred applicant. It was not necessary to say that there was an opportunity to be heard that governed the Authority’s functions. But at some point the Authority must turn its mind to whether the referred applicant had had an opportunity to be heard and should be given an opportunity to address the issue.

47    Section 473DC(2) said there was no duty but, in contrast to the language in Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319, it did not remove the obligation to consider. The language of this provision simply said no “duty to get”. Nowhere was there anything addressed to the question of consideration. What the primary judge relied upon as informing that obligation was the underlying question of whether there had been an opportunity to be heard on the issue, and that was different from saying that the Authority must give an opportunity to be heard.

48    Without conceding that there was no room for more general natural justice obligations within Div 3, the primary judge was not postulating some obligation to give a hearing but that, in deciding whether or not to exercise these powers, the Authority should turn its mind to whether or not the referred applicant had had an opportunity to be heard on that issue already. The powers were put there for the very purpose of ensuring that, if it was necessary to give a hearing on a new issue, that was how it was to be done.

49    As held by the primary judge, the obligation was not to get the information or to remit, but to consider whether to do either of those things.

50    In the present case, as held by the primary judge at [21], the Authority did not even consider whether the respondent had had any opportunity to be heard on the relocation issue before the delegate. So it would have been necessary then to consider in that light whether to get information under s 473DC or to remit, with a permissible direction, under s 473CC. That was not the same as saying that the respondent must be given a reasonable opportunity to be heard on the dispositive issue.

51    The matter rested on legal unreasonableness in failing to consider and, perhaps, failing to exercise available powers having regard to the scope and purpose of the statutory scheme. This was clear from the finding the primary judge made at [16], where he concluded that there was legal unreasonableness here.

52    The respondent accepted that the scheme under Pt 7AA was set up to provide a more limited form of merits review of certain protection visa decisions, but strongly submitted that it was not designed to be intrinsically unfair.

53    The whole premise of that regime was that referred applicants had had an opportunity to make claims and provide information – an opportunity to be heard – at the primary level before the delegate, and the mischief was that applicants should put all claims forward at the earliest opportunity and the review by the Authority was designed to operate as a quick and efficient second stage review and reconsideration. But it would completely undermine that premise and that purpose if, where a new issue arose before the Authority on which there had been no reasonable opportunity to be heard and in respect of which the Authority was given powers to deal with if exceptional circumstances were established, the Authority were to be under no obligation even to consider whether to do so, having regard to the underlying purpose of the regime which was to give an opportunity to be heard on all relevant issues.

54    The explanatory memorandum accompanying the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) included the following:

A key component of the fast track assessment process is that fast track applicants will not be permitted to seek review from the RRT of their protection visa decisions. The Bill will instead, require the Minister to refer, as soon as reasonably practicable, certain decisions made in respect of fast track review applicants to the Immigration Assessment Authority (the IAA). The IAA will conduct a limited review of these decisions.

…

As a limited review body, other than in exceptional circumstances, the IAA is prohibited from considering any new information for the purposes of making a decision, irrespective of whether the IAA obtained it through its discretionary powers or an applicant provided it of their own volition. New information will only be considered if the IAA is satisfied that there are exceptional circumstances to justify the consideration of that new information. For example, exceptional circumstances may be found where there is evidence of a significant change of conditions in the applicant’s country of origin that means the applicant may now engage Australia’s protection obligations. Where an applicant provides or seeks to provide the IAA with new information of their own volition, they would also have to satisfy the IAA that the new information could not have been provided to the Minister before the primary decision was made. The limited review mechanism supports the measures in the Migration Amendment (Protection and Other Measures) Bill 2014 which clarify the responsibility of asylum seekers to specify the particulars of their claim, provide sufficient evidence to establish their claim and encourage complete information to be provided upfront. The measures will prevent those asylum seekers who attempt to exploit the merits review process by presenting new claims or evidence to bolster their original unsuccessful claims only after they learn why they were not found to engage Australia’s protection obligations by the Department of Immigration and Border Protection.

…

The power to remit a fast track decision with directions or recommendations will permit the IAA to review the substantive matters which must be satisfied before the visa application can be approved and, if these are decided in favour of the applicant, to then remit the case back to the Department to consider the more procedural criteria, which would not be appropriate for the IAA to deal with.

55    The critical part of this part of the explanatory memorandum, the respondent submitted, was that in dealing with whether and when new information should be obtained, it was noted that the limited review mechanism supported the measures in the Migration Amendment (Protection and Other Measures) Bill which clarified the responsibility of asylum seekers to specify the particulars of their claim, provide sufficient evidence to establish their claim and encourage complete information to be provided up front. That Bill, which became a 2015 Act, inserted ss 5AAA and 423A, and each of those essentially did two things: one, it declared the responsibility to provide as many or all particulars of claims at the first opportunity and, two, the latter section provided that the tribunal should draw an inference adverse to credibility if that obligation was not adhered to. So if an applicant at review sought to rely on fresh claims or evidence then, unless there was a reasonable explanation, the tribunal was directed to draw an inference adverse to credibility.

56    That mischief had nothing to do with the present appeal, and, the respondent submitted, the scheme of the legislation provided mechanisms in Pt 7AA to deal with situations which fell outside that mischief. There was nothing in Pt 7AA which said anything to change the fundamental principle that the decision as to protection obligations was made as at the date of the decision on the circumstances then prevailing. The difficulty for the Minister’s submissions was that in a situation explicitly addressed on multiple occasions in the explanatory memorandum, that the Authority could get new country information on a recent change of circumstances in the country of origin either of its own initiative or sent by the Secretary, the Authority could determine the review on that basis adversely to a referred applicant without any obligation even to consider whether the applicant should be heard on that issue.

57    The respondent referred to the judgment of Gageler J in Li at [99] and [103]:

The legislative declaration that Div 5 of Pt 5 “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with” (s 357A(1)) gives added significance to the implied requirement for the MRT to act reasonably in the performance of its procedural duties and in the exercise or non-exercise of its procedural powers. The significance is that the implied statutory requirement for the performance of those duties and the exercise of those powers always to be reasonable results in the division providing a measure of procedural fairness sufficient to meet the statutory description of it as a statement of the requirements of the natural justice hearing rule.

…

The MRT fails to comply with a requirement essential to the valid performance of its duty to review a particular decision if it fails to consider the exercise of its power to adjourn that review in circumstances where no reasonable tribunal could fail to do so. The MRT fails to comply with requirements essential to the valid performance of that duty and to the valid exercise of that power where, having considered the exercise of that power, the MRT fails to exercise that power so as to adjourn the review in circumstances where no reasonable tribunal could fail to adjourn the review. If an unreasonable failure to adjourn is material to the outcome, such decision as the MRT goes on in fact to make on the review is invalid.

58    The respondent submitted that it was very relevant, in considering the scope and availability of the powers conferred in Div 3 of Pt 7AA, which included the power to get new information, to recognise they were part of a statutory code of procedure. They were not some draconian exclusion of fairness. They were a way of achieving fairness.

59    The respondent submitted that judicial review was sought in relation to the ultimate decision on the review and the question was whether some exercise or non-exercise of a procedural power had led to unreasonableness in the ultimate decision.

60    The respondent submitted that although there was no duty to get information, the non-consideration or the non-exercise could still lead to unreasonableness in the ultimate decision in a manner that would mean that the body had not performed its statutory task. That was to be assessed by having regard to the statutory purpose and objects which, in the case of the Migration Review Tribunal, included provisions like s 420 or s 353 in relation to the substantial justice and the merits of the case. But here one would look at the purpose, which was to ensure that at some point in this process a referred applicant was given an opportunity to be heard, and that a referred applicant who sat on their rights or sat on information or claims will potentially be shut out at the review stage. But the provisions were not intended to deny a fair hearing to a referred applicant on genuinely new issues that arose after the delegate had made his or her decision.

61    In reply, the Minister submitted that in a case where the dispositive issue had not been the subject of a hearing before the delegate, that meant that an assumption that may have underlain the drafting of Pt 7AA may not be a good assumption, but it did not follow that therefore words were to be read into the language that was not in the sections.

62    If there was a new situation in the referred applicant’s country of nationality or if new information was obtained that meant there was a complete change of circumstances in the referred applicant’s country of nationality after the delegate’s decision, the Minister submitted that there was no obligation on the Authority to bring that to the referred applicant’s attention or to consider whether to bring it to their attention. The paragraphs of the explanatory memorandum referred to circumstances which may justify the consideration of new information. They did not go the next step and speak of circumstances which may or would justify reverting to a referred applicant. The Minister submitted that it was conceivable that the Authority might decline to acquire new information, and might make a decision ignoring changes in the referred applicant’s country of origin which decision would, nevertheless, not be invalid because it would be one based on the material before the Authority.

63    In written submissions filed, by leave, after the hearing, the respondent made submissions to the effect that s 473DC(1) should be read down so that it only applied to documents or information of an evidentiary character, and did not apply generally to written submissions or comments given to the Authority by a referred applicant. It would follow, it was submitted, that the Authority had power to seek or to receive written submissions or comments from a referred applicant apart from and outside its specific powers to get new information under s 473DC and to consider new information under s 473DD. There was no express or implied statutory prohibition in Pt 7AA that would prevent the Authority from seeking or receiving such submissions or comments. Insofar as submissions or comments from a referred applicant contained new information in an evidentiary sense, the Authority would need to apply the requirements of s 473DD before considering that information. The Authority would be otherwise free to have regard to the submissions or comments outside the requirements of ss 473DC and 473DD.

64    In his written response, also by leave, the Minister made submissions on the issue whether the resolution of the case might lie outside s 473DC by virtue of an implicit capacity in the Authority to invite not information but submissions. In broad terms, the Minister’s submission was that the Authority had only the powers granted to it by statute and there was no room for the implied powers for which the respondent contended.

65    In light of our conclusions below, it is not necessary to consider this issue.

Consideration

66    We consider it to be significant that what is reasonable, in the sense of “practicable”, in terms of relocation must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality: SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 at [24].

67    It is also relevant that, as explained by Gageler J in Li at [92], reasonableness is closely linked to procedural fairness. Nevertheless, in light of the terms of s 473DA it is important to consider the present issue through the lens of Div 3 and the principles of legal reasonableness rather than the principles of procedural fairness. In other words, was it legally reasonable in the circumstances of the particular case for the Authority not to consider the exercise of its power to get documents or information? Thus although we accept the Minister’s submission that the respondent had no inkling, and no way of having an inkling, that the Authority was going to accept the case he had put to the delegate but then decide against him on a different basis, we do not consider that the procedural fairness perspective exhausts the legal analysis. Further, in our opinion, that the outcome is unfair “in an ordinary sense”, as accepted by Senior Counsel for the Minister, is not irrelevant to whether or not there has been legal unreasonableness in the exercise or non-exercise of statutory powers.

68    We accept that the Authority was making a fresh decision and was not restricted to the correction of error in relation to the issues considered by the delegate to be determinative: BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169.

69    Next, it is appropriate to record that, although much argument was addressed to the nature of the Authority’s discretion in Subdiv C, including s 473DC, there is no doubt that the Authority had power to get any documents or information which were not before the Minister and which the Authority considered may be relevant. Put differently, that the Authority has a discretion rather than a duty to get those documents or information does not provide an answer to whether or not the Authority acted reasonably as explained in Li. We do not accept the submission on behalf of the Minister that the only relevant question is whether Pt 7AA required the Authority to give such notice to a referred applicant.

70    Neither do we accept the Minister’s submission that if there was no duty imposed on the Authority to consider the exercise of a discretionary power, the principles of legal unreasonableness could only have application in cases where the Authority had given consideration to exercising the power, and decided to exercise it in a manner adverse to an affected party. In our opinion, that proposition is too broad.

71    Reliance was placed on the obiter dicta of the Full Court in Yasmin v Attorney-General of Commonwealth of Australia [2015] FCAFC 145; 236 FCR 169 at [120]. Suffice to say that the question is one of statutory construction and the question in that case arose in a materially different procedural and statutory context. The procedural context was the Attorney-General’s objection to the competency of an application for judicial review. The statutory context was a failure to decide whether to refer to the Court of Appeal a petition under s 140 of the Sentencing Act 1995 (WA). The present Authority’s review function and powers are very different. The submission, tentatively put in Yasmin, the correctness of which it was unnecessary to determine, was that on the material tendered on the notice of objection to competency, the point had been reached by the time of the hearing at first instance that the Attorney-General’s failure to consider and determine the appellant’s application was legally unreasonable.

72    We accept that part of the Minister’s submission that there was no evidence to suggest that the Authority exercised, or even considered exercising, its power in s 473DC. But we do not accept the submission that, given the presence of s 473DC(2), the Authority’s non-engagement with s 473DC(3) meant that it could not be said that it proceeded in a legally unreasonable manner.

73    Similarly, in our view s 473DE is not dispositive even though a large part of the Authority’s reasoning at [31]-[34] and [41] is information that falls within s 473DE(3), commonly referred to as “country information”, and is thus excepted from the obligation to invite comments from the referred applicant.

74    Again, although submissions were directed to the question of “information” as opposed to “comments”, the former being dealt with in s 473DC and s 473DD and the latter in s 473DE, we do not consider that distinction to be of present significance. We do no more than note the discussion in AZR16 v Minister for Immigration and Border Protection [2017] FCA 1453 at [65]-[66] of those terms in other provisions of the Migration Act and agree that those terms may overlap to some extent.

75    The primary judge found, at [21], that the Authority had not considered whether or not to exercise its powers under ss 473DC and 473DD. As we read it, no ground of appeal was directed to those powers. We also understand the Minister to have accepted the finding. In any event, we agree with that conclusion. There is no reference to those powers in the 47 paragraphs of the Authority’s reasons of over 9 pages.

76    The Authority knew or must be taken to have known that the question of relocation had not been considered by the delegate. The Authority must also have been taken to have known that the question of relocation depended on the particular circumstances of the respondent. As found by the primary judge, there was nothing in the interview with the delegate that concerned the question of relocation. The transcript of that interview is before the Court and we agree with that finding.

77    The analysis of legal unreasonableness in respect of statutory powers and discretions must be founded in the terms in which both powers and discretions are conferred.

78    We have identified the powers available to the Authority. It is also necessary to consider the broader statutory context.

79    It is necessary to give full weight to the requirements of s 473DB which, subject to Pt 7AA, require the Authority to review a fast track reviewable decision referred to it under s 473CA by considering the review material, as defined in s 473CB, without accepting or requesting new information and without interviewing the referred applicant. However it is clear that s 473DB is “[s]ubject to this Part” and the Part includes s 473DC.

80    Another part of the context is the obligation on the Authority under s 473CC(1) to review a fast track reviewable decision referred to it under s 473CA. Its powers under s 473CC(2) are also to be noted. The Authority may affirm the fast track reviewable decision or remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation. Under r 4.43 of the Migration Regulations 1994 (Cth):

(2)    It is a permissible direction that:

(a)    the referred applicant must be taken to have satisfied the criteria for the visa that are specified in the direction; or

(b)    the referred applicant is a refugee within the meaning of subsection 5H(1) of the Act; or

(c)    subsection 36(3) of the Act does not apply to the referred applicant; or

(d)    the referred applicant satisfies each matter, specified in the direction, that relates to establishing whether the referred applicant is a person to whom Australia has protection obligations because the criterion mentioned in paragraph 36(2)(aa) of the Act is satisfied in relation to the applicant.

(3)    However, it is not a permissible direction that:

(a)    subsection 5H(1) of the Act applies to the referred applicant; or

(b)    subsection 5H(1) does not apply to the referred applicant because of subsection 5H(2); or

(c)    the referred applicant satisfies, or does not satisfy, the criterion in subsection 36(1C) of the Act; or

(d)    the referred applicant satisfies a matter that relates to establishing whether there are serious reasons for considering that:

(i)    the referred applicant has committed a crime against peace, a war crime or a crime against humanity, as defined by an international instrument mentioned in regulation 2.03B; or

(ii)    the referred applicant committed a serious non-political crime before entering Australia; or

(iii)    the referred applicant has been guilty of acts contrary to the purposes and principles of the United Nations; or

(e)    the referred applicant satisfies a matter that relates to establishing whether there are reasonable grounds that:

(i)    the referred applicant is a danger to Australia’s security; or

(ii)    the referred applicant, having been convicted by a final judgment of a particularly serious crime, including a crime that consists of the commission of a serious Australian offence or serious foreign offence, is a danger to the Australian community.

(4)    It is a permissible direction that the grant of the visa is not prevented by section 91W, 91WA or 91WB of the Act.

81    We do not accept the Minister’s submission that where there is a new situation in the referred applicant’s country of nationality, or if new information were obtained that meant there was a complete change of circumstances in the referred applicant’s country of nationality after the delegate’s decision, there was no obligation on the Authority to consider whether to bring it to the referred applicant’s attention. We understood this submission to mean that those circumstances could not give rise to legal unreasonableness.

82    Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.

83    As in Li, at [82], it is not apparent how the conclusion not to consider the exercise of the discretionary power was reached in the present case, having regard to the facts and to the statutory purpose for which the discretion to get new information was directed.

84    We do not see it to be of significance that the Authority may remit the decision for reconsideration in accordance only with a “permissible direction”. Here, without considering the exercise of the discretion to get new information, the Authority acted so that, in effect, it could not make one of the permissible directions.

85    Also we do not see it to be significant that the word “fair” is not used in s 473FA. That provision requires the Authority to pursue the objective of providing a mechanism of limited review that is, amongst other things, consistent with Div 3. The Minister’s submission is, to that extent, circular.

86    If the submission was pressed, we do not accept the contention on behalf of the Minister that the very terms of the statutory claims being made show that relocation must always be a live question. The terms of s 5J(1)(c) of the Migration Act show that the person has a well‑founded fear of persecution if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of those reasons; and (c) the real chance of persecution relates to all areas of a receiving country. Similarly, s 36(2B)(a) provides that there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm. But the existence of these broad statutory criteria is not to the present point. Most significantly the Minister’s contention involves a procedural fairness analysis which, as we have indicated, is not the correct perspective.

87    Neither do we accept that the material reproduced in the visa application form or in the information given to the respondent shows that relocation was in his case a live question: compare particular b. of the notice of appeal. Again, in our opinion, this involves an inappropriate procedural fairness analysis.

Conclusion and orders

88    We see no appellable error in the judgment of the primary judge. The appeal should be dismissed, with costs.

Associate:

Dated:    14 December 2017