FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent have leave to rely on his amended notice of contention dated 15 November 2017.

2.    The appeal is dismissed.

3.    The parties are to file, within 14 days, agreed orders as to the costs at first instance and on appeal. Failing agreement the parties are to file within the same period short minutes of the costs orders for which they contend and written submissions, limited to 3 pages on each side, in support of those proposed orders.

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

REASONS FOR JUDGMENT

THE COURT:

1    This appeal by the Minister for Immigration and Border Protection (the Minister) is from the judgment and orders of the Federal Circuit Court of Australia made on 22 June 2017. Those orders quashed a decision of the Immigration Assessment Authority (the Authority) made on 15 November 2016 and required the Authority to redetermine according to law the review application referred to it.

2    The Authority had affirmed a decision of a delegate of the Minister (delegate), made on 12 August 2016, refusing the first respondent’s application for a Safe Haven Enterprise (subclass 790) visa (SHEV).

3    We shall refer to the first respondent as the respondent. It is accepted that he is a citizen of Afghanistan and that he is an ethnic Hazara and a Shia Muslim from Qarabagh district. He was born in 1991.

4    The appeal, and the respondent’s amended notice of contention, concern Pt 7AA of the Migration Act 1958 (Cth), inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth).

5    The issues arising are as follows:

1    On the Minister’s appeal, whether the primary judge erred in holding that it was unreasonable for the Authority not to consider giving the respondent an effective opportunity to address the issue that it found dispositive and failed to consider acting under s 473DC(3) of the Migration Act.

2    On the respondent’s amended notice of contention, whether the primary judge erred in failing to find that procedural fairness required that the respondent be informed of the issues that the Authority considered may be dispositive of his case, and be given a reasonable opportunity to respond.

3    On the Minister’s appeal, whether the primary judge erred in holding that the Authority made a jurisdictional error in failing correctly to apply the relocation provision in s 36(2B)(a) of the Migration Act.

4    On the respondent’s amended notice of contention, whether the primary judge erred in failing to find that the Authority in fact acted pursuant to s 473DC(3) of the Migration Act in issuing its letter of 27 October 2016 and that in that circumstance the Authority’s non-compliance with s 473DF(2) of the Migration Act, read with r 4.42(a) of the Migration Regulations 1994 (Cth), resulted in jurisdictional error.

5    On the respondent’s amended notice of contention, whether the Authority’s letter of 27 October 2016 was issued pursuant to the Authority’s non-statutory powers or capacities and whether it was legally unreasonable for the Authority not to give the respondent a meaningful time to respond.

The statutory provisions

6    A “fast track applicant” and a “fast track decision” are defined in s 5 of the Migration Act as follows:

fast track applicant means:

(a)    a person:

(i)    who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and

(ii)    to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and

(iii)    who has made a valid application for a protection visa in accordance with the determination; or

(b)    a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b).

Note:    Some unauthorised maritime arrivals born in Australia on or after 13 August 2012 may not be fast track applicants even if paragraph (a) applies: see subsection (1AC)

fast track decision means a decision to refuse to grant a protection visa to a fast track applicant, other than a decision to refuse to grant such a visa:

(a)    because the Minister or a delegate of the Minister is not satisfied that the applicant passes the character test under section 501; or

(b)    relying on:

(i)    subsection 5H(2); or

(ii)    subsection 36(1B) or (1C); or

(iii)    paragraph 36(2C)(a) or (b).

Note:    Some decisions made in the circumstances mentioned in paragraph (a), or subparagraph (b)(i) or (iii), of the definition of fast track decision are reviewable by the Administrative Appeals Tribunal in accordance with section 500.

7    By s 473BB, a “fast track reviewable decision” means:

(a)    a fast track decision in relation to a fast track review applicant; or

(b)    a fast track decision determined under section 473BC;

but does not include a fast track decision in relation to which the Minister has issued a conclusive certificate under section 473BD.

Note:     Fast track decisions are decisions (subject to some exceptions) to refuse to grant protection visas to certain applicants, known as fast track applicants. Some specified fast track applicants are known as excluded fast track review applicants; all others are known as fast track review applicants. The highlighted terms are defined in subsection 5(1).

8    Section 473BA provides an outline of the review process relating to fast track decisions under Pt 7AA:

473BA Simplified outline of this Part

This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.

Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants.

Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants.

Fast track reviewable decisions must be referred by the Minister to the Immigration Assessment Authority as soon as reasonably practicable after a decision is made. A person cannot make an application for review directly to the Immigration Assessment Authority.

Decisions to refuse to grant protection visas to fast track applicants are generally not otherwise reviewable under this Act, although some decisions are reviewable by the Administrative Appeals Tribunal.

The Immigration Assessment Authority consists of the President of the Administrative Appeals Tribunal, the head of the Migration and Refugee Division of the Tribunal, the Senior Reviewer and other Reviewers. The President and that Division head are responsible for the overall administration and operation of the Immigration Assessment Authority. The Senior Reviewer is appointed by the President or that Division head. The Senior Reviewers and other Reviewers are engaged under the Public Service Act 1999.

In reviewing fast track reviewable decisions, the Immigration Assessment Authority is required 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).

The Immigration Assessment Authority does not hold hearings and is required to review decisions on the papers that are provided to it when decisions are referred to it. However, in exceptional circumstances the Immigration Assessment Authority may consider new material and may invite referred applicants to provide, or comment on, new information at an interview or in writing.

The Immigration Assessment Authority may affirm a referred decision or may remit the decision for reconsideration in accordance with directions.

The Immigration Assessment Authority may give directions restricting the disclosure of information. There are also specific requirements for the giving and receiving of documents.

9    By s 473CA:

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

10    By s 473CB:

(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 is 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 is 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.

…

14    We set out the provisions relating specifically to the relocation question at [101] below, where we consider that issue.

The decision of the delegate

15    The respondent attended an interview with the delegate on 8 July 2016. No transcript of those proceedings is in evidence. However the delegate recorded in his reasons for decision that “the [respondent]’s migration agent provided written post-interview submissions in response to the concerns raised by the Department … It was submitted that relocation to Kabul is neither safe nor reasonable…”.

16    Given how his migration agent later expressed herself in those post-interview submissions on the respondent’s behalf (referring directly to what had been mentioned by the delegate) we think it reasonable to infer that the respondent’s migration agent was also present during that interview, but nothing ultimately turns on that. Whether the respondent’s post-interview submissions were advanced on the basis of what his migration agent had herself heard and seen during the interview or on the basis of what the respondent had told her, it reasonably may be inferred that it was in consequence of what had been put to the respondent in the course of the respondent’s interview that her submissions specifically addressed not only whether it would be safe for the respondent to return to his home district of Ghazni Province but also whether Kabul might be a safe place for a Shia Muslim to relocate within Afghanistan having regard to ss 5J(1)(a) and 36(2B)(a) of the Migration Act.

17    The respondent’s migration agent submitted, inter alia, that recent attacks on Hazaras and persons perceived as foreigners or infidels in Kabul included:

•    In April 2016 a Taliban car bomb killed at least 64 people in the heart of Kabul.

•    In January 2016 the Taliban killed seven journalists from a private television station, which Aljazeera describes as the Taliban stepping up its “campaign against the Western-backed government.”

•    UNAMA reported on 28 December 2015, a Taliban suicide attacker detonated a vehicle-borne-IED near Maidan Hawae square, in Kabul city, killing one civilian and injuring 32 others, including two women and 19 children. Taliban claimed responsibility for the attack on their website, stating that they killed and injured “many foreign invaders” in the attack.

•    A news article in February 2015 reported on residents in western Kabul, which has a large Hazara community, have received night letters bearing the IS logo in which Shi’ite Muslims are denounced as infidels.

•    In 2014 a suicide bomber targeted a Shia cultural centre.

•    In 2011 the Abu Fazl Mosque was attacked by a suicide bomber during the Islamic holy day of Ashura. The attack claimed 50 lives, the majority of whom were Shia.Lashkare-Jhagvi, a Pakistani-based Sunni group, claimed responsibility for the attacks.

(Footnotes omitted.)

18    Five pages of the respondent’s post-interview submissions were specifically responsive to the risks of harm that the respondent would face because of his circumstances were he to be required to relocate to Kabul.

19    As we have indicated at [3] above, the delegate was satisfied that the respondent is a citizen of Afghanistan, born in 1991. He is an ethnic Hazara and a Shia Muslim from the Qarabagh district. The delegate was satisfied that the respondent faced a real chance of suffering serious harm amounting to persecution, individually or cumulatively, on account of his race and religion if he were to return to his local area in Afghanistan. However the delegate was satisfied that there was no real chance of persecution in Kabul and that the respondent was able to safely and legally access Kabul. The delegate noted that the respondent would return to Kabul alone and without any dependent family members.

20    In relation to complementary protection, the delegate found that there was a real chance that the respondent would be subject to serious harm if he were to return to his home area in Qarabagh but that he could legally and safely access Kabul. The delegate was not satisfied that there was a real risk that the respondent would be subjected to significant harm due to indiscriminate violence in Kabul. The delegate was satisfied that it was reasonable, in the sense of practicable, for the respondent to relocate to Kabul.

21    On 15 August 2016, the decision of the delegate on the respondent’s application was referred to the Authority for review under s 473CA of the Migration Act.

Communications by and with the Authority

22    By letter dated 27 October 2016, the Authority invited the respondent to comment “on the following information that may be the reason, or part of the reason for affirming the decision of the Department of Immigration and Border Protection …”. The information related to the security situation in Afghanistan and to the issue of relocation to Mazar-e-Sharif in the Balkh Province. It said:

I am writing to you in relation to your application for a protection visa and the review conducted by the Immigration Assessment Authority (IAA).

You are invited to comment on the following information that may be the reason, or part of the reason for affirming the decision of the Department of Immigration and Border Protection:

Security situation in Afghanistan

On 23 July 2016, a suicide attack in western Kabul killed more than 80 people and injured over 230. The target of the attack was a civilian protest of Hazara Shias. On 11 October 2016, at least two attackers opened fire on mourners in Kabul’s Kart-e Sakhi shrine, killing at least 16 and wounding 54. On 12 October, an explosion, in the province of Balkh, killed 14 people and wounded 28. The targets of these attacks were Shias commemorating Ashura.

The Islamic State’s local franchise in Afghanistan, the ‘Islamic State in Khorasan Province’ (ISKP), appears to have been responsible for these attacks.

Commentary from the Afghanistan Analysts Network relevantly provides the following assessment of ISKP in Afghanistan:

•    These attacks ... indicate that [ISKP] has an operational presence in Kabul that is beyond the ‘nascent’ stage. The group seems to have gained the capability of carrying out fatal attacks on an occasional basis in the capital, although not at a sophisticated level yet.

•    ISKP as an organisation has struggled to expand beyond the four districts in Nangarhar, remaining, so far, a limited threat. A possibly larger threat is the broader radicalisation that provides a permissive environment and recruitment pool for groups such as ISKP.

•    ISKP’s sectarianism is worrying. Yet it is unlikely that it can single-handedly drive the conflict in a sectarian direction.

•    Moreover, the Afghan population generally and religious leaders, big and small, from both major sects have traditionally emphasised the value of co-existence, making it more difficult for fringe actors to tear apart the social cohesion. Sectarian violence has remained a taboo during the Afghan conflict through modern history. The instances of sectarian violence have represented more the very occasional exception than the rule. For any group with a solid vision to rule this country, promoting sectarianism is to play with fire.

Two reports from IHS Jane’s raise doubt about Islamic State’s capacity to potential for future attacks by Islamic State – referred to here as ‘Islamic State Wilayat Khorasan’:

Despite the Kabul attack, Wilayat Khorasan is unlikely to gain substantial strength in Afghanistan in at least the one-year outlook. Wilayat Khorasan has largely struggled to control territory, even in Nangarhar where its influence is strongest. The Taliban has been aggressive in eradicating any Wilayat Khorasan supporters and factions, and government counter-terrorism efforts have disproportionately targeted Wilayat Khorasan fighters in relation to the group's operational strength...

Wilayat Khorasan remains focused on building its strength and conducting asymmetric operations to maximise casualties, and will probably continue to conduct infrequent attacks in urban areas.

Afghan and US forces, as well as elements of the Taliban, are intent on eliminating Wilayat Khorasan's presence in Afghanistan, which is likely to limit the Islamic State's geographic expansion over the next year. However, despite this pressure, the group is likely to remain capable of conducting terrorist attacks in Kabul. Although Taliban groups will target public officials, foreign forces and Afghan security personnel, Wilayat Khorasan is likely to remain focused on targeting Shia groups over the next six months...

While recent reports confirm there have been attacks against Hazara Shias in Kabul and Balkh by Islamic State, the above information may indicate that future attacks on the Hazara Shia population in Kabul and Balkh are likely to be occasional or infrequent, and that Islamic State’s capacity in the country is limited and under threat from Afghan, US and Taliban forces. The information also suggests that the attacks are unlikely to result in the emergence of sectarianism in the country.

Weighed together, this may lead the IAA to find that Islamic State is a limited threat and conclude that there is not a real chance or real risk of you being seriously harmed for reasons of your religion or ethnicity in urban areas like Kabul and Mazar-e-Sharif, and therefore that your fear of persecution may not relate to all areas of Afghanistan.

It may also be relevant to the issue of whether you could live in or relocate to Kabul, as the IAA may conclude that it would be reasonable for you to relocate to an area such as Kabul where there is not a real risk of you suffering significant harm. Subject to your comments, this new information would be the reason, or part of the reason, for affirming the decision not to grant you a protection visa.

Relocation to Mazar-e-Sharif

In terms of relocation, you are also invited to comment on the following new information, which is relevant to whether it would be reasonable for you to relocate elsewhere in Afghanistan to avoid significant harm.

Mazar-e Sharif in the Balkh Province, is one of the biggest commercial and financial centres in Afghanistan. It is considered the unofficial capital of northern Afghanistan and has been relatively isolated from the conflict in the last decade. The Balkh Province has a tradition of high educational standards and has a comparatively high literacy rate, including for women. It is home to several universities. The major ethnic groups living in Balkh province are Tajiks and Pashtuns followed by Uzbek, Hazaras, Turkmen, Arab and Baluch. Mazar-e-Sharif is considered to be one of the safest cities of Afghanistan, much more so than Kabul. While some urban centres suffer more insecurity, figures from 2009 until 2015 show Mazar-e-Sharif has one of the lowest numbers of civilian victims in its city centre. Information before the IAA indicates there is an international airport in Mazar-e-Sharif accepting flights from Kabul and international locations.

While there is a report of a recent attack in Balkh, this new country information is relevant as it may lead the IAA to conclude Mazar-e-Sharif remains a relatively safe urban area and that it would not be unreasonable for you to relocate to such a city, where there is not a real risk of you suffering significant harm. Subject to your comments, this new information would be the reason, or part of the reason, for affirming the decision not to grant you a protection visa.

You are invited to give comments on the above information in writing. Your comments must be received at the IAA by 1 November 2016. If the comments are in a language other than English, they must be accompanied by an English translation from an accredited translator.

If we do not receive your comments by 1 November 2016, we may make a decision on the review without taking any further action to obtain your views on the information.

If you have any questions, please email iaa@iaa.gov.au or telephone 1800 205 919. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.

Yours sincerely

Immigration Assessment Authority

(Footnotes omitted.)

As will have been seen, the letter stated that the respondent’s comments must be received at the Authority by 1 November 2016. If the comments were in a language other than English, they were required to be accompanied by an English translation from an accredited translator. The letter also said that if comments were not received by 1 November 2016, the Authority may make a decision on the review without taking any further action to obtain the respondent’s views on the information.

23    We infer, having regard to the content of the Authority’s letter of 27 October 2016 and the scheme of Pt 7AA of the Migration Act that at a point in time before that letter was sent to the respondent the Authority must have: first, got certain new information that it considered to be relevant to its review which had not been before the delegate at the time the delegate had made his decision to refuse the respondent a SHEV (s 473DC(1)); and, second, been satisfied that there were exceptional circumstances that would justify it considering that new information in the review (s 473DD(a)). So much is evident from [3] of the later decision of the Authority.

24    The respondent contacted the Authority on the morning of 1 November 2016 to say his case officer had only handed him the invitation to comment on the afternoon of 31 October 2016. According to the first case file note dated 1 November 2016 (as written):

He expressed strong concerns about not being able to respond by today, which is the due date. He said he struggles to communicate in his own language let alone writing a response in English. I asked if there was anyone at the detention centre who would be able to help him and he said no. I gave him 2 contact numbers to call to see if they could help him but reminded him, that unfortunately the response is due today. I gave him the numbers for Australian Red Cross… and Asylum Seeker Centre of New South Wales…. I suggested he could put a request in for an extension but said I was unsure if the legislation allows for this for invitations. If he wishes to ask for an extension, I suggested he do this today but I cant guarantee that it would be granted. The applicant said he cant write an email in English to do this. I said I will case note this conversation but for him to try to explain his circumstances in writing to the IAA. he thanked me for my time and terminated the call.

25    A further case file note dated 1 November 2016 was in the following terms:

The applicant contacted the IAA with the assistance of a TIS (Hazaragi) interpreter… and referred to a letter he has received requesting he responds to information. He said he is illiterate in English and his native language and is having some difficulty in responding to the letter. I asked him if his case manager at Villawood can assist as it is the IAA’s understanding that case managers at detention centers assist in this regard. He said his case manager does not assist and in fact no people at the detention center really provide any assistance. I advised him that he should try again and if he feels he is not being assisted adequately that he should request to speak to a manager or team leader. He said he would do so then went on to say that a response to the letter is due today and he is unsure if he can manage all of this today. I advised him that if he deems it necessary he may want to submit a request of an extension of time however it would need to be submitted in writing and he will need to specify a timeframe and the exact reasons for his request. He said he would do so. I then provided him with 2 contact numbers… and ended the call.

26    By email dated 1 November 2016 to the Authority, the respondent said as follows:

Thanks you for your letter of 27 October 2016, asking me to comment on new information by today, please note I only receive this letter yesterday on the afternoon of 31 October. So I would need more time to prepare a proper response. I am currently at villawood immigration detention centre and don’t have access to a lawyer. I need to find someone to help me with a represent In English. would it be possible to request an extension of six weeks??

Thank you for your understanding.

27    The Authority replied by letter dated 2 November 2016. We set it out in full, omitting formal parts.

I am writing to you in relation to your application for a protection visa and the review conducted by the Immigration Assessment Authority (IAA).

I refer to your email of 1 November 2016 requesting additional time to respond to the IAA’s invitation to comment on adverse information.

We have considered your request. The Migration Act 1958 (the Act) imposes strict deadlines for a response to a request to provide new information. Under the Migration Act, the IAA is not able to extend the deadline.

The due date for you to respond to the invitation was 1 November 2016. Where the IAA does not receive the information by the due date, it may make a decision on the review without taking any further action to get information or comments. However, if a response is received after that date, but before the decision is made, the IAA may consider the information subject to meeting the requirements of the Act.

Please note that no decision in this review will be made before 3 November 2016. Any response made before a decision is made may be considered.

If you have any questions, please email iaa@iaa.gov.au or telephone 1800 205 919. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450. You may find information in your own language on our website.

28    There is then a case file note of a telephone call on 2 November 2016 from a case manager at Villawood saying that the respondent would not receive that correspondence until mid-afternoon (on that day, 2 November 2016) at the earliest or, if he did not return from court before 16:30, until the morning of 3 November 2016. The case manager indicated that the respondent could not read or write and would possibly be unable to understand correspondence that the Authority had sent him.

29    In fact, the respondent did not contact the Authority after 1 November 2016.

30    As it happened, the Authority’s decision was not made until 15 November 2016.

The decision of the Authority

31    On 15 November 2016, the Authority notified the respondent that it had decided to affirm the decision under review.

32    The Authority accepted that the respondent is an Afghan National and a Hazara Shia from Qarabagh district in Ghazni province. At [24], the Authority accepted that the security situation in Ghazni province, and in particular in the respondent’s home area of Qarabagh, was insecure and that Hazara Shias, in particular those travelling on the roads in that area, were at risk of being kidnapped or killed on the roads by Anti-Government Elements, including the Taliban. The Authority was satisfied that there was a more than remote chance that the respondent would face serious harm, in the form of kidnapping, disappearance or killing. The Authority was satisfied that the respondent’s religion or ethnicity would be an essential and significant reason for the harm.

33    The Authority then considered whether the real chance of persecution related to all areas of Afghanistan, the receiving country: (s 5J(1)(c) of the Migration Act). At [25], the Authority found that the respondent did not face a real chance of being seriously harmed for reasons of his ethnicity, religion or any other profile in all areas of Afghanistan.

34    At [35], the Authority said it was not satisfied that there was a real chance or risk of the respondent being seriously or significantly harmed by Islamic State in Mazar-e-Sharif, for reasons of his religion, ethnicity or any other reasons. The Authority was also satisfied that the recent serious attacks in Kabul in which Hazara Shias were deliberately targeted and the recent attack against Hazara Shias in the Balkh district were not yet an indication of a return to sectarianism involving Hazara Shias in the country in the reasonably foreseeable future.

35    At [36], the Authority found that the respondent did not share the risk profile of people or groups who may be at a real risk or a real chance of harm from Anti-Government Elements in Mazar-e-Sharif. At [38], the Authority accepted that the respondent may be viewed as a returnee/failed (Hazara Shia) asylum seeker from the west, but was satisfied he would not face a real chance of being seriously harmed for these reasons if he returned to live in a major urban area like Mazar-e-Sharif (or even Kabul).

36    At [40], the Authority found that there was not a real chance that the respondent would be imputed with another profile (such as a connection to the government or international bodies), that he would be seen as westernised or be imputed to hold any political opinion supportive of the government, that would result in him facing a real chance of being seriously harmed in an urban area such as Mazar-e-Sharif. The Authority found that the respondent did not share the risk profile of people or groups who may be at a real risk or a real chance of harm from Anti-Government Elements such as the Taliban in Mazar-e-Sharif and other urban areas like Kabul, nor did the Authority accept such a profile would be imputed to him.

37    At [41] the Authority found that, viewed altogether, within Mazar-e-Sharif:

… there is no real chance of the [respondent] being seriously harmed for reasons relating to his religion, ethnicity, actual or imputed political opinion, membership of the particular social groups of returnees from the west (westernised) or failed (Hazara Shia) asylum seekers, or for any other profile arising from these characteristics. It follows that while I accept the [respondent] may be seriously harmed if he returns to his home area of Qarabagh, I am not satisfied that the real chance of persecution relates to all areas of the receiving country and s.5J(1)(c) is not met.

38    At [47]-[62], the Authority made a corresponding assessment in relation to complementary protection under s 36(2B) of the Migration Act.

39    At [50], the Authority began its consideration of whether it would be reasonable for the respondent to relocate from Qarabagh to an area of the country such as Mazar-e-Sharif where there would not be a real risk that he would suffer significant harm.

40    The Authority noted that the respondent claimed that he could not safely relocate within Afghanistan. It further noted, at [51], that the delegate asked the respondent questions about relocation to Kabul in his visa interview, but not about relocation to Mazar-e-Sharif.

41    The Authority then referred, at [53], to the letter dated 27 October 2016 inviting the respondent’s comment on country information about the security situation in Mazar-e-Sharif and Balkh Province and the question of whether it would be reasonable for the respondent to relocate to the city.

42    At [54], the Authority accepted that relocating to Mazar-e-Sharif would be challenging, but there was a range of considerations that indicated the respondent could successfully relocate to the city and that it would be reasonable for him to relocate to that area.

43    At [55]-[61], the Authority said as follows:

I accept that the applicant may be illiterate and have had little education. I have weighed that against the prospect of him relocating, however I also note that he has travelled through Iran, including living and working in the country without the assistance of his father. As a result he has several years of work experience as a painter and an ability to live independently. The applicant speaks Dari and Hazaragi, and has some English abilities, which he demonstrated during the interview clarifying his responses through English at times. While I accept that there are economic difficulties throughout Afghanistan, I have also noted above the range of factors that point to the strength of Mazar-e-Sharif, including its status as a commercial and financial centre, its diversity, and strong educational standards. Considering all the circumstances, I am satisfied that he would be capable of finding work and shelter and accessing essential services in the city.

I accept that the applicant has not lived in Mazar-e-Sharif, but he has shown the resilience, adaptability, and capability of relocating himself elsewhere, as evidenced by his time in Iran.

The representative has claimed that the applicant has for a long period of time been living in Iran, under a strict Shia regime in Iran. The applicant made little reference to his religious practice in the interview when questioned by the delegate. I accept he is a Shia, but I do not accept that his time in Iran would be so significant that this would be a barrier to him returning to Afghanistan, or relocating to Mazar-e-Sharif. I accept the applicant has the distinguishable physical appearance of a Hazara, but I do not accept this would prevent him from relocating to Mazar-e-Sharif. While Hazaras are not in the majority in this city, there is a reasonable Hazara population in the city, and I have found he would not be at risk of harm on the basis of his religion or ethnicity there.

I accept that he would not have family or tribal support networks in the city. UNHCR and DFAT advice indicates that relocation to urban areas is more successful for those that possess family and tribal connections. The exception to this is single able-bodied men and married couples of working age without specific vulnerabilities. The applicant is a young male, and while he has had some health issues in detention I am satisfied he is an able-bodied man. The applicant is not married and has no children. He speaks Hazaragi, Dari and some English, and while I accept that the stress and anxiety of detention has had a significant impact on him, the medical evidence before me does not point to the applicant having serious health concerns that require intervention. Allowing for those difficulties, I am satisfied he has no serious vulnerabilities that would impact on his ability to relocate to Mazar-e-Sharif.

I accept there would be challenges in terms of him being unable to visit his family outside of Mazar-e-Sharif. However, I am not satisfied that those familial and social barriers outweigh the factors that suggest it would be reasonable for the applicant to relocate to Mazar-e-Sharif, and avoid the serious harm he fears in his home area.

In terms of accessing Mazar-e-Sharif, I note that there remains general insecurity on the roads in Afghanistan, in particular in Ghazni and Zabul, however I could only identify one security incident on the Kabul-Mazar Highway. I note that there is an international airport in Mazar-e-Sharif which accepts daily flights from Kabul. On the information before me, I am satisfied the applicant would be able to safely access Mazar-e-Sharif from Kabul.

Considering all the circumstances, I am satisfied it would be reasonable for the applicant to relocate to an area of the country such as Mazar-e-Sharif where there would not be a real risk that the applicant will suffer significant harm. As I am satisfied that the applicant could relocate to Kabul [sic, Mazar-e-Sharif], there is not a real risk that the applicant will suffer significant harm in Afghanistan.

(Footnotes omitted.)

44    The Authority concluded that the respondent did not meet s 36(2)(aa) of the Migration Act.

Proceedings in the Federal Circuit Court

45    The primary judge surveyed the relevant legislative provisions affecting the operation of the Authority.

46    The primary judge then addressed the issue of whether the Authority erred in setting a time limit for the respondent to respond to the Authority’s 27 October 2016 Invitation to Comment. One of the respondent’s contentions was that the Authority was in error in stating that the deadline for a reply was 1 November 2016. Another contention was that the Authority was in error in its implicit finding that it had no further power to invite the respondent to respond to the 27 October 2016 letter.

47    The primary judge said, at [63], it was clear from the legislation that an invitation issued under either s 473DC or s 473DE must provide three working days for a response, from the time of the notification of the invitation. The respondent was not notified of the Invitation to Comment until it was handed to him at the detention centre on the afternoon of 31 October 2016. That being a Monday, the applicant was entitled to a period until the end of 3 November to respond. The Authority was wrong in assuming that its direction to the detention centre to deliver the letter on 27 October 2016 had been complied with, even in circumstances where the detention centre did not contact the Authority to advise of its non-compliance. Having been informed by the respondent that he only received the Invitation to Comment on 31 October, the Authority should have clarified the time for response.

48    The primary judge accepted the respondent’s submission that the Authority specified the wrong period for the response to the Invitation to Comment, but accepted the Minister’s submissions concerning the lack of a jurisdictional consequence of the error.

49    The Authority proceeded upon the basis that the Invitation to Comment was issued pursuant to s 473DE. In parts of its letter, the Authority said that the respondent was invited to comment on information “that may be the reason, or a part of the reason for affirming the [delegate’s] decision”. The Authority also explained why the new information contained in the Invitation to Comment was relevant to the review. Further, the Authority said that the respondent had until 1 November 2016 to respond to the invitation, and that, if he did not do so, it “may make a decision on the review without taking any further action to obtain [his] views on the information”—language that appeared in s 473DF(4)(a). Still further, the Authority referred to s 473DE as the provision under which the Invitation to Comment was purportedly issued, at [3] of the Authority’s reasons. The primary judge inferred from the Invitation to Comment and the Authority’s reasons, therefore, that particulars of the information in question were given to the respondent because the Authority felt compelled to do so. His Honour said that no other inference was reasonably open. In particular, there was no basis for the inference, for which the respondent contended – relying upon Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; 221 CLR 1 (a case dealing with s 425(1)) and CZBH v Minister for Immigration and Border Protection [2014] FCA 1023 (a case dealing with s 426) – that the Authority “thought it was necessary to give the [respondent] the opportunity to give further information to complete the review process” and “the review process was incomplete unless the Invitation to Comment was lawfully given to the [respondent] and there was no error in the Authority’s application of the law in relation to it.”

50    The primary judge said at [67] that, critically, nothing in the material before the Court suggested that, had the Authority been aware that the obligation in s 473DE(1) was not enlivened and had it not issued the Invitation to Comment pursuant to that provision under a misunderstanding that it was compelled to do so, nonetheless the Authority would have exercised its discretion under s 473DC(3) to invite the respondent to give new information with respect to the country information. There was also no evidence before the Court (other than the respondent’s subsequent inactivity) to suggest that the respondent took, or failed to take, certain steps in relation to the review by relying upon the Invitation to Comment.

51    Accordingly, the primary judge held, at [68], that “while the Authority erred in specifying the time limit in relation to the Invitation to Comment, the allegation of legal error thereby in making a decision on the review without taking steps to obtain the [respondent]’s response to the Invitation to Comment, cannot sound in invalidity for that reason alone. At worst, the error made by the Authority was within jurisdiction.”

52    The primary judge then turned to consider whether the Authority failed to conduct its review as required by s 473CC(1) of the Migration Act. The respondent’s contention was that the Authority made an attempt to inform the respondent of the new issue, namely whether he could relocate to Mazar-e-Sharif as opposed to Kabul, but that attempt was said to have been ineffective, both in terms of the procedures required by the legislation and in terms of giving the respondent a real opportunity to respond. The exercise of the Authority’s jurisdiction to conduct a review was thus left incomplete.

53    The primary judge held, at [85], putting to one side the issue of legal reasonableness, that there was no constructive failure of jurisdiction by the Authority in completing its review by including the sub-issue of relocation to Mazar-e-Sharif without any effective reference to the respondent. To the extent that the process followed by the Authority was procedurally unfair, it was authorised by the statutory procedural code under which the Authority operated.

54    The primary judge then turned to consider whether the Authority erred in failing to consider inviting the respondent to attend a hearing or comment in writing on the question of relocation to Mazar-e-Sharif.

55    The respondent contended that the issue of relocation to Mazar-e-Sharif was a new issue arising in the review. The respondent contended that the Authority failed to complete the exercise of its jurisdiction by:

    failing to invite him to give new information at an interview pursuant to s 473DC(3)(b) “initially”;

    failing to invite him to give new information, in writing or at an interview, pursuant to ss 473DC(3)(a) or (b), on or after 1 November 2016;

    failing to consider inviting him to give new information at an interview “initially”; and/or

    failing to consider inviting him to give new information in writing or at an interview on or after 1 November 2016.

56    The primary judge concluded that these grounds failed. At [101], the primary judge said the Authority could have invited the respondent to provide new information in writing or at an interview but it was not required to do so. There was nothing in the Authority’s procedural code which prevented it from inviting submissions from the respondent on the new sub-issue of relocation to Mazar-e-Sharif but it was under no obligation to do so. The Authority, in contrast to the Administrative Appeals Tribunal, was under no obligation to reveal to an applicant new issues that may be dispositive, and the principles set out in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 had no application. At [102]-[103], the primary judge said that absent an unreasonable failure or refusal to do so, neither the Authority’s procedural code, nor the general law, imposed an obligation to do so. Further, unless the failure to consider exercising its discretion was unreasonable, there was no error of jurisdiction in the Authority not considering its discretion to disclose information or issues or invite new information, or comment, or submissions.

57    The primary judge accepted that the Authority proceeded on the false premise that it was compelled to disclose the new information under s 473DE and there was no evidence that the Authority turned its mind to the possible application of s 473DC, or an extension of its previous invitation to the respondent to make a submission.

58    The primary judge then turned to consider whether the Authority’s failure to invite the respondent to an interview, or to consider doing so, was legally unreasonable.

59    The primary judge said, at [106], the ground raised the issue of the reasonableness of the Authority’s conduct in issuing the Invitation to Comment in writing in the first place and in failing to consider alternative means of giving the respondent an opportunity to address the matters raised in the Authority's letter of 27 October 2016 on or after 1 November 2016.

60    The Minister submitted, with reference to Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [45], that to assess whether the Authority acted unreasonably in the circumstances of the present case, the Court must “focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law”.

61    The primary judge upheld this ground. From [117]-[124], the primary judge reasoned as follows.

62    First, in the absence of notice, the respondent and any advisor he may have had could not have known that relocation to Mazar-e-Sharif was an issue before the Authority. It was objectively unfair for the Authority to conduct the review on the basis of that new sub-issue without effective reference to the respondent. The attempt by the Authority to bring the issue to the respondent’s attention and invite a response was ineffective because the time for a response was wholly inadequate given the respondent’s circumstances, and the Authority proceeded under the wrong section of the Migration Act and applied the wrong time limit. Even if it had applied the correct time limit, there would have been an inadequate time for the respondent to respond given his detention, his lack of English and his lack of advice or professional assistance. There was no evidence that the Authority considered any alternative procedure. The Authority had available to it the discretions conferred by s 473DC, as well as its administrative discretion to extend its earlier invitation to the respondent to make a submission. However, the general law could not provide a remedy for that unfairness unless the conduct of the Authority was legally unreasonable.

63    The Authority’s mistaking the source of its power did not result in invalidity of an act done otherwise within power. We assume his Honour had in mind authorities such as Lockwood v Commonwealth [1954] HCA 31; 90 CLR 177 at 184; Johns v Australian Securities Commission [1993] HCA 56; 178 CLR 408 at 469.

64    The primary judge said that in the absence of clear words to the contrary, a statutory discretion had to be exercised reasonably. In considering what is “reasonable”, close attention must be given to the scope and purpose of the statutory provision which confers the discretion and other related provisions. What was reasonable in the context of Pt 7AA must be seen in the context of: there being considerable restrictions on the natural justice hearing rule; the lack of requirement for an oral hearing; the fact that the Authority did not have the power to remit the application to the delegate with a direction that he or she consider a particular factual issue; and what Gageler J said in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [99] and [102], as follows:

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 permissive terms in which the power to adjourn is conferred on the MRT make clear that the power itself carries no duty on the MRT to consider its exercise. The overriding duty of the MRT to review a decision may nevertheless require the MRT, acting reasonably, to consider exercise of the power in a particular case. The duty of the MRT to review a decision is to be performed within what, in all the circumstances, is a reasonable time. The power of the MRT to adjourn is in aid of the performance of that duty.

(Footnotes omitted.)

65    The discretion in s 473DC(3) existed to be exercised in an appropriate case, in aid of the objective of making the correct or preferable decision. In circumstances where, as here, the respondent could not have known of the issue dispositive of the review of his case without being informed, and where there was a power to inform him of that issue and seek information or comment relevant to it, the failure to exercise or consider exercising the relevant power to inform him of the issue lacked an evident and intelligible justification, in addition to having resulted in an unfair procedure.

66    Thus, contrary to the Minister’s submissions, it was unreasonable for the Authority not to consider giving the respondent an effective opportunity to address the issue that it found dispositive. Although the Authority thought it was acting under s 473DE in sending the letter of 27 October 2016 it should have acted or considered acting pursuant to s 473DC(3). Since the giving of that letter was fundamental to the review, at least insofar as raising the issue about relocation to Mazar-e-Sharif was concerned, it followed that an error in identifying the relevant statutory provision, calculating a statutory response time, or unreasonableness in insisting on a particular form or timeframe of response, would unreasonably deny the respondent the opportunity to respond consistently with the provisions of Pt 7AA and thus was a jurisdictional error.

67    Further, given the respondent’s circumstances, of which the Authority was plainly aware, imposed severe limitations on his capacity to respond in writing – especially within a three working day time limit – the Authority needed to consider the option of inviting the respondent to an interview to address the issue of fundamental importance to the outcome of the review. In the circumstances of this case, the failure by the Authority to consider its power to conduct an interview was unreasonable.

68    The primary judge concluded that it was unreasonable for the Authority to fail to consider proceeding under s 473DC(3), to proceed incorrectly under s 473DE, to impose an incorrect deadline for a response and to fail to correct its error in relation to time when informed by the respondent of the day on which the Invitation to Comment had been received.

69    Finally, the primary judge turned to consider whether the Authority erred in considering whether the respondent could relocate within Afghanistan. We have set out the reasoning of the primary judge on this issue at [103] below. In short, the primary judge found jurisdictional error on the basis that the Authority did not consider whether the established risk of generalised violence in Mazar-e-Sharif rendered it unreasonable for the respondent to relocate there and the Authority only considered the risk of violence in accessing the city, not living in it.

The notice of appeal to this Court

70    The notice of appeal is in the following terms:

1.    The primary judge erred in holding that the Second Respondent, the Immigration Assessment Authority (IAA), made a jurisdictional error in that it failed to consider exercising its power under s 473DC(3) of the Migration Act 1958 (Cth) (Act) to invite the First Respondent to attend an interview to give new information, namely, to comment on country information going to the question of relocation to Mazar-e-Sharif (Relocation Issue) that had been disclosed to the First Respondent in a letter purportedly issued pursuant to s 473DE(1), and his Honour ought to have held that the power in s 473DC(3) does not carry with it a duty to consider its exercise: at [118], [120]-[124].

2.    The primary judge erred in holding that the IAA made a jurisdictional error in that it was unreasonable or unfair for it not to exercise its power under s 473DC(3) to invite the First Respondent to attend an interview to give new information on the Relocation Issue and/or not to exercise its “administrative discretion to extend its earlier invitation … to make a submission” under a Practice Direction issued by the President of the Administrative Appeals Tribunal pursuant to s 473FB(1), to proceed by issuing an invitation pursuant to s 473DE(1), and to impose an incorrect deadline for a response to that invitation, and his Honour ought to have held that:

a.    the IAA was not under a duty to exercise the power in s 473DC(3) by reason of s 473DC(2);

b.    in any event, the IAA’s conduct in the circumstances of the present case and in the light of the statutory context (which relevantly comprised ss 473DA(1), 473DB(1), 473DC(2) and 473FA(1)) was not legally unreasonable;

c.    the procedure adopted by the IAA was not unfair in the light of the circumstances of the present case and the statutory context; and

d.    the Practice Direction did not confer on the IAA a separate power (that is, a power separate from those powers and discretions contained in Division 3 of Part 7AA of the Act) to invite submissions: Judgment at [118], [120]-[122], [124].

3.    The primary judge erred in holding that the IAA made a jurisdictional error in that it failed correctly to apply the relocation test in s 36(2B)(a) of the Act, and his Honour ought to have held that that test was correctly applied: Judgment at [159]-[160].

71    The respondent’s amended notice of contention was as follows:

Grounds relied on

1.    The Court Below erred in failing to find that the second respondent (the IAA);

(a)    In fact acted pursuant to s. 473DC(3) of the Migration Act in issuing its letter of 27 October 2016, despite thinking that it acted pursuant to s. 473DE, and,

(b)    That in that circumstance the IAA’s non-compliance with s. 473DF(2) of the Migration Act, read with Migration Regulation 442(a) (sic: 4.42(a)) resulted in jurisdictional error.

2.    The Court Below erred in failing to find that procedural fairness, to the extent that it applied to the first respondent’s case, required that the first respondent be informed of the issues that the IAA considered may be dispositive of his case, and to be given a reasonable opportunity to respond.

3.    The decision of the Court Below could be supported on the basis that, alternatively to Ground 1 of this Amended Notice of Contention;

(a)    The express provisions of Part 7AA of the Migration Act are not exhaustive of the powers, discretion or capacity of the IAA to ask for information or submissions, and,

(b)    The IAA’s letter of 27 October 2016 was issued pursuant the exercise (sic) of its non-statutory power, discretion or capacity, and,

(c)    It was legally unreasonable for the IAA not to give the appellant a meaningful time to respond.

Consideration

72    Before turning to the issues we have listed at [5] above, we should specify the errors made by the Authority in its correspondence of 27 October 2016 and 2 November 2016.

73    First, the invitation to give comments, assuming it to have been made under s 473DE(1) as the Authority wrongly thought, was to be within a period prescribed by regulation and specified in the invitation: s 473DF(2). Regulation 4.42 of the Migration Regulations specified that for a referred applicant in immigration detention the period for giving comments was three working days after the referred applicant “is notified of the invitation”. Here the respondent was not notified of the invitation until Monday 31 October 2016, with the consequence that three working days after that notification was not, as stated in the letters of the Authority, 1 November 2016 but 4 November 2016.

74    On the assumption that a provision of the Migration Act permitted the Authority to give the document to the respondent, s 473HA would permit the Authority to give the document to the respondent by any method that it considered appropriate. As to a method prescribed for the purposes of giving documents to a person in immigration detention (see s 473HA(1)(b)(ii)), we take this to be a reference to r 5.02 which states that a document to be served on a person in immigration detention may be served by giving to the person himself or herself, or to another person authorised by him or her to receive documents on his or her behalf. It does not appear that the respondent had given the Authority a current written notice of the name and address of an authorised recipient pursuant to s 473HG. It follows that the invitation to comment was given on 31 October 2016. This analysis is consistent with the Authority’s contemporaneous communications to the Immigration Detention Centre emphasising that the correspondence had to be given to the detainee. The same conclusion would follow even if, in terms of s 473HA(1), a provision of the Migration Act did not permit the Authority to give the document to the respondent but the Authority had the capacity to do so apart from such a provision.

75    The Authority specified the wrong period three times in writing: first, by specifying 1 November 2016 in the letter dated 27 October 2016, secondly by specifying again in the letter dated 2 November 2016 that the “due date for you to respond to the invitation was 1 November 2016”; and thirdly saying that no decision on the review will be made before 3 November 2016, which was the day before the due date worked out in accordance with s 473DF(2) and r 4.42. These errors are on the basis that three working days applied.

Issue 1

76    It was common ground that s 473DE(1) did not apply to oblige the Authority to invite the respondent to give comments on the new information.

77    There being no obligation to invite the respondent to give comments under s 473DE, contrary to the Authority’s then view, there seem to us to be three broad possibilities.

78    The first is that, if it be necessary to find an express statutory power to invite the respondent to comment it stemmed from s 473DE, which combines a duty with a power, or it stemmed from s 473DC, to which s 473DE, where it applies, superadds a duty to that power. If either of these possibilities is correct, then s 473DF(2) applied, with the result that there were the same three errors as to the time periods stated by the Authority. We discard these possibilities given the apparently limited purpose of s 473DE and given the different language and object of s 473DC as compared to s 473DE. A similar analysis is to consider that in fact the respondent was “invited under section 473DE to give comments on new information in writing” within the meaning of s 473DF(1)(b) even though the Authority was mistaken in thinking it was obliged by s 473DE(1) so to do. The three working days after the respondent was notified of the invitation would then apply directly so that the comments were to be given by 4 November 2016.

79    A second alternative analysis is that if the Authority had not been mistaken as to its obligation to act under s 473DE, then to carry out its statutory task of review in a legally reasonable way it would have had to consider acting under s 473DC: see Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (CRY16). In that way the Authority’s mistake had an operative effect on the performance by it of its statutory task of review. We would not accept the Minister’s submission that, because s 473DE did not apply, the mistakes made by the Authority did not have a legal or jurisdictional consequence. It is common ground that the Authority did not consider acting under s 473DC and this was because it wrongly considered that it was under a duty under s 473DE to invite the respondent to give comments.

80    CRY16 establishes that particular circumstances may arise in the course of a review that may, as a matter of legal reasonableness, require the Authority to consider exercising its discretion under s 473DC. That is so notwithstanding that s 473DA(1) provides that the provisions of Div 3 of Pt 7AA of the Migration Act “are to be taken to be an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Authority”.

81    The application of the principles in CRY16 that meant that it was legally unreasonable for the Authority not to have considered the exercise of its statutory power under s 473DC leads to a comparable conclusion in these proceedings, although the circumstances in which the Authority did not consider the exercise of that power in the present proceedings are different. In the present case the Authority decided that it had new information, albeit country information, and that there were exceptional circumstances that would justify it considering that new information. As in CRY16, the Authority was considering whether it would be safe for the review applicant to relocate within a country in circumstances where he might otherwise be entitled to protection, and whether it would be reasonable in the sense of “practicable” for him to do so. This depended upon the particular circumstances of the respondent, 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]. In each case the Authority had decided to take into account new material which had not been before the Minister’s delegate. As the Authority said in the present case at [51], “the delegate asked [the respondent] questions about relocation to Kabul in his visa interview, but not Mazar-e-Sharif”. The errors as to time limits, considered at [75] above, would also be relevant to the extent that it is contended that the mistaken resort to s 473DE yielded no response and the same should be taken to apply to the jurisdictional error of the Authority in failing to consider acting under s 473DC.

82    The third broad alternative is that no express statutory basis to make an enquiry for the purposes of exercising a statutory power is necessary, in which case the time period is not to be measured against s 473DF(2) and r 4.42 but by the concept of what is a reasonable time. In this case as well, the period specified was legally defective as being less than a legally reasonable time in the circumstances. Those circumstances include the facts, which the Authority knew, as to the relative complexity of the subject matter; that the respondent “may be illiterate and have had little education”; that the respondent was in immigration detention; that he would possibly be unable to understand the correspondence that the Authority had sent him; that he said he would need more time to prepare a proper response; that he had said he did not have access to a lawyer; and that his comments would need to be in English or accompanied by an English translation from an accredited translator.

83    We prefer the analysis in [79]-[81] above.

84    Senior Counsel for the Minister accepted that the deadline which was specified was mistakenly specified. However the Minister’s submission was, in effect, that the errors were in consequence of the Authority’s mistake about the requirements of s 473DE, there being no such obligation under s 473DE(1) by virtue of s 473DE(3) which states that the obligation does not apply to new information that is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member (country information).

85    As we have said, at [79] above, in our view the Authority’s mistake as to its obligation did not mean that the errors it made were immaterial. We reject the notion that the errors had no legal consequence because the Authority had no duty in the first place to invite the respondent to give comments on the new information. The Authority’s decision showed no consideration of the exercise of its discretion under s 473DC and, for that matter, no awareness on the part of the Authority that the time specified for a response was legally flawed.

86    If we are wrong in what we have so far concluded, we analyse the Authority’s decision-making as follows, in the alternative to the analysis at [79]-[81] above.

87    We again repeat what we said in CRY16 at [66] – that 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 at [24]. As we have noted, at [51] of its decision the Authority said that during the visa interview the delegate asked the respondent questions about relocation to Kabul, but not Mazar-e-Sharif.

88    We then note that there are circumstances in which it may be legally unreasonable not to consider the exercise of the discretionary power in s 473DC(3). CRY16 is an example.

89    In the present case due attention must be given to the essential facts, the most significant of which is that the Authority incorrectly told the respondent, for the purposes of s 473DF(2), if it applied, that his comments must be received by the Authority by 1 November 2016. He was told that no decision would be made before 3 November 2016. The respondent was also told by the Authority that any response he gave before a decision was made may be considered, subject to it meeting the requirements of the Migration Act.

90    The respondent made no response. As noted by the Authority at [4]: “No further contact, submission or comment was made to the IAA.” If relevant, there was no evidence before the primary judge to suggest that the respondent took, or failed to take, certain steps in relation to the review by relying upon the letter of 27 October 2016: see the judgment of the primary judge at [67].

91    Our analysis is that although the Authority made a legal error in considering it was under a duty to invite the respondent to comment, it in fact invited a response. But the invitation specified the wrong period and did so three times: see [75] above. Next, considered objectively, the errors were likely to have had an effect on whether the respondent gave a response: there is a substantive difference between being told of a right to respond and a possibility or contingent possibility born of the Authority’s mistakes. The Authority’s mistakes were likely to have had an operative effect. In the circumstances, the chance to respond in fact given was not an effective chance, or a reasonable chance, to respond. The absence of a duty under s 473DE does not change the assessment of the ultimate decision for legal unreasonableness. Subsequently, the Authority made its decision without the respondent’s response.

92    In these circumstances it was legally unreasonable for the Authority to make its decision. The process it adopted was either contrary to the statute or did not allow a reasonable time to respond. The Authority’s mistake as to its obligation to invite the respondent to give comments does not mean that the errors it made in limiting the period in which the respondent had a right to respond were immaterial.

93    The legislature is to be taken to intend that the Authority’s statutory powers will be exercised reasonably.

94    Further, the exercise of the power to decide lacked 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 Mazar-e-Sharif. The Authority did not have that information because the question of relocation to Mazar-e-Sharif was not explored, or the subject of findings, by the delegate. The Authority’s failure to give the respondent an effective chance to respond 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.

95    Turning then to the reasons of the primary judge, it is to be recalled that one element in his Honour’s conclusion of legal unreasonableness was that the Authority failed to consider proceeding under s 473DC(3). The second element of the conclusion was that the Authority proceeded incorrectly under s 473DE. The third element was the imposition of an incorrect deadline for a response. The fourth element was that the Authority failed to correct its error in relation to time when informed by the respondent of the day on which the 27 October 2016 letter had been received.

96    We prefer the analysis we have set out at [79]-[81] and the alternative analysis at [91]-[94] above. In effect, our analysis is that the first element identified by the primary judge is sufficient to establish legal unreasonableness. The second, third and fourth elements identified by the primary judge we have adapted in our reasoning at [91]-[94]. The result is however the same, in that the Authority’s decision cannot stand.

Issue 2

97    This issue is whether the primary judge erred in failing to find that procedural fairness required that the respondent be informed of the issues that the Authority considered may be dispositive of his case, and to be given a reasonable opportunity to respond.

98    The respondent submitted that the Authority was required to disclose the issue that it saw as dispositive of the review and to invite a response either in writing or at an interview. It also required that the respondent be given a reasonable opportunity to respond. Given his lack of English and his circumstances in detention, the opportunity given to him, which at most extended from the afternoon of 31 October 2016 to 2 November 2016, was entirely inadequate.

99    In our opinion, there is no scope for the principles of procedural fairness to apply to a review by the Authority where Pt 7AA is followed, except to the extent that those principles overlap with legal unreasonableness. A procedural fairness analysis is not the correct perspective: CRY16 at [67] and [86]. The respondent’s contention fails. This is not to say that where Div 3 of Pt 7AA is not followed, a ground of denial of procedural fairness is not available. Section 473DA is not so broad. Section 473DE plays a critical role in the scheme of limited review that Parliament has enacted to ensure some procedural fairness. Where s 473DE applies, an allegation of legal error on the Authority’s part in making a decision on the review without taking steps to obtain a referred applicant’s response to an invitation to comment may sound in invalidity for that reason alone: see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294 at [77] per McHugh J, [173] per Kirby J and [208] per Hayne J. To that extent we would, with respect, disagree with the reasoning of the primary judge at [68].

100    We reject Ground 2 of the respondent’s amended notice of contention.

Issue 3

101    This part of the Minister’s appeal primarily concerns the terms of s 36 of the Migration Act, but we also set out the corresponding part of the terms of s 5J(1)(c) as follows:

5J    Meaning of well-founded fear of persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

…

36    Protection visas – criteria provided for by this Act

…

(2B)    However, 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:

(a)    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;…

…

102    This ground turns on what it is the Authority said in its reasons.

103    The primary judge held, at [159], that the Authority failed to consider whether the level of violence in Mazar-e-Sharif rendered it unreasonable (as opposed to unsafe) to relocate. Having set out [47]-[61] of the Authority’s reasons, the primary judge said, at [160], that the Authority did not consider whether the established risk of generalised violence in Mazar-e-Sharif rendered it unreasonable for the respondent to relocate there. The Authority only considered the risk of violence in accessing the city, not living in it, relying on MZYQU v Minister for Immigration and Citizenship [2012] FCA 1032; 206 FCR 191, MZZJY v Minister for Immigration and Border Protection [2014] FCA 1394 and MZACX v Minister for Immigration and Border Protection [2016] FCA 1212. The risk might have been “remote” as found by the Authority, but it did not follow that the risk was so low as to avoid the need to consider it in relation to the reasonableness of relocation.

104    The Minister submitted the test to be applied under this provision was the same as that which applied in respect of claims under the Convention prior to the commencement of s 5J(1)(c). The Minister contended for the following errors in the reasoning of the primary judge.

105    First, the Minister submitted the Authority did consider, in the context of assessing the reasonableness of relocation, the risk of the respondent being harmed in generalised violence in Mazar-e-Sharif. Having found that the respondent would not face a real risk of significant harm for any Convention reason in Mazar-e-Sharif ([48]), the Authority considered the respondent’s risk of being harmed in “generalised violence” and found that that risk was “remote” and, therefore, there would not be a real risk that he would suffer significant harm there: [49].

106    The Authority then turned to the question whether it would be reasonable, in the sense of practicable, for the respondent to relocate to Mazar-e-Sharif: [50]-[61].

107    In this connection, the Authority had regard to the respondent’s claim that Hazaras are “under threat” in Afghanistan: [52]. It also considered his employment and family history, background, skills, health issues, illiteracy and education ([54]-[58]); “the strength of Mazar-e-Sharif, including its status as a commercial and financial centre, its diversity, and strong educational standards” ([55]); and his ability to access Mazar-e-Sharif: [60]. The Authority concluded its assessment of the reasonableness of relocation by “[c]onsidering all the circumstances”: [61]. Those words should be treated as encompassing all of the matters that the Authority referred to earlier in its reasons, including the (“remote”) risk of generalised violence in the event that the respondent were to live in, and not merely access, Mazar-e-Sharif, as well as those factors that bore upon the Authority’s assessment of relocation in the Convention context, including societal discrimination and attacks against Hazara Shias in Afghanistan (including in Mazar-e-Sharif) and generalised violence: [29]-[40].

108    For these reasons, the Authority’s reasoning was not at odds with MZYQU, MZZJY and MZACX insofar as they stood for the proposition that a risk of encountering violence in a putative place of relocation of an unspecified nature or level (that is, below the threshold of serious harm) may be relevant to the reasonableness of relocation.

109    Secondly, in referring to the risk of the respondent being harmed in generalised violence as “remote”, the Authority should be understood to have found that that chance was so small that it could be excluded from further consideration. On that view, it may be said that the Authority did not treat the question of generalised violence as irrelevant to its assessment of the reasonableness of relocation; rather, it found that it did not arise.

110    Thirdly, the question of reasonableness is one that required a factual inquiry to be undertaken and an evaluative judgment to be made. While the practical realities facing an applicant will be relevant, s 36(2B)(a) did not specify any mandatory relevant considerations. As Allsop J observed in SZBJI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 216 at [22], a decision-maker is not required in addressing relocation “to elaborate on every aspect of its practical application.” Insofar as MZYQU, MZZJY and MZACX, if considered to apply equally to the relocation test under s 36(2B)(a), may suggest that consideration must always be given to the risk of generalised violence when assessing the reasonableness of relocation, they were, with respect, wrong as they descended to a greater level of particularity than was called for by the Migration Act, and should not be followed.

111    Fourthly, even if the Authority implicitly treated the “remote” risk of generalised violence in Mazar-e-Sharif as irrelevant in assessing the reasonableness of relocation, that did not amount to a jurisdictional error in the circumstances of the present case. That was because the question of reasonableness involved a comparison between the conditions prevailing in the place of habitual residence and those in the putative place of relocation. That had the consequence that, in the complementary protection context, it would not be unreasonable for a person to relocate to a proposed safe haven if he or she would not be substantially worse off there than in his or her place of habitual residence. Hence, a particular risk present in a putative place of relocation was not logically capable of weighing against relocation unless that risk was absent or significantly lower in an applicant’s place of habitual residence. To the extent that the cases upon which the primary judge relied omitted this step in their analysis of relocation, they should not be followed.

112    In the present case, the Minister submitted, the Authority’s findings at [24], [46] and [48]-[49] pointed strongly against any risk of generalised violence in Mazar-e-Sharif being a relevant factor. The Authority found that Qarabagh was “insecure” and Hazara Shias were at risk of being kidnapped or killed, to the extent that the respondent had a well-founded fear of encountering serious harm there. On the other hand, it found that there was not a real risk of significant harm in Mazar-e-Sharif; that the risk of generalised violence in Mazar-e-Sharif was “remote”; and that that city was “one of the safest … in Afghanistan”. Thus, the “remote” risk of generalised violence in Mazar-e-Sharif could not be a factor that would make relocation unreasonable. Insofar as the Authority failed to give weight to this factor when assessing reasonableness, that did not constitute an error going to jurisdiction.

113    The respondent took issue with the Minister’s submission that MZYQU, MZACX and MZZJY were wrong and should not be followed insofar as they suggested that consideration must always be given to the risk of generalised violence when assessing the reasonableness of relocation. The respondent submitted that Kenny J in MZACX at [35], Davies J in MZZJY at [21] and Dodds-Streeton J in MZYQU at [60]-[61] emphasised that the personal circumstances of an applicant were relevant to the question of whether relocation to a particular place was reasonable even if the risk of harm in that place was less than a “real chance” or a “real risk”. That was consistent with the reasons of Gummow, Hayne and Crennan JJ in SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 at [24]. Those personal circumstances may be entirely consistent with it being unreasonable to relocate to an area where the risk of harm may not amount to a real risk.

114    The respondent submitted that the Authority itself recorded that there had been violence, indeed that there were “credible security risks” in Mazar-e-Sharif, but found that the risk of harm was “remote” ([49]). In context, that was a reference to there being less than a real risk of serious harm. The Minister’s submission ([33]) that the Authority found that the risk of harm was so small that it could be excluded from further consideration gave the word “remote”, at [49], a meaning entirely divorced from its context.

115    What the Authority had to consider, the respondent submitted, were the factual circumstances raised by the evidence which bore upon the reasonableness or otherwise of the respondent’s relocation to Mazar-e-Sharif. The paragraphs of the Authority’s decision cited by the Minister at [36] had everything to do with whether there existed a real chance of persecution or serious harm in the respondent’s home area ([24], [46]), and in Mazar-e-Sharif ([48]-[49]). They had nothing to do with whether, in view of the trauma that he reported suffering, it was reasonable for him to relocate to a place where there were “credible security risks”.

116    For those reasons, the respondent submitted the primary judge was correct, at [160], in finding that the Authority failed to consider whether the established risk of generalised violence in Mazar-e-Sharif made it unreasonable for the respondent to live there.

117    In our opinion, the statutory question for the Authority was whether it was satisfied that it would be reasonable for the respondent to relocate to an area of Afghanistan where there would not be a real risk that he will suffer significant harm: see s 36(2B)(a).

118    The Authority’s reasoning was as follows. At [25] and following, the Authority considered whether the real chance of persecution related to all areas of Afghanistan, in the context of s 5J(1)(c) of the Migration Act. The Authority found, at [26], that there would not be any chance of the respondent being targeted specifically by, broadly, anti-government groups outside his home area. At [27], the Authority referred to Department of Foreign Affairs and Trade advice that the Government had maintained effective control over Mazar-e-Sharif: it had one of the lowest numbers of civilian victims in its city centre. The city had not been completely immune to insurgent attacks but they remained almost exclusively directed at the national security forces. Civilians had been victims in those attacks but there was little evidence or indication of the direct or deliberate targeting of civilians or ethnic or religious groups. The Authority, at [29], accepted that the respondent may face some societal discrimination in Mazar-e-Sharif but it was not satisfied that any discrimination would constitute serious harm. At [35], the Authority accepted that there had been recent serious attacks in Kabul and that Hazara Shias were deliberately targeted, but found it significant that there had been no major attacks against Hazara Shias in Mazar-e-Sharif since 2011 and gave weight to the country information indicating the government had effective control and security over the city. The Authority said it was not satisfied that there was a real chance or risk of the respondent being seriously or significantly harmed by Islamic State in Mazar-e-Sharif, for reasons of his religion, ethnicity or any other reasons. The Authority was also satisfied that the attacks were not yet an indication of a return to sectarianism involving Hazara Shias in Afghanistan in the reasonably foreseeable future.

119    The Authority then went on to consider threats from other Anti-Government Elements in the city but said that the country information did not support a finding that a low profile Hazara Shia, like the respondent, would face a real chance of being targeted for harm by such Elements. The respondent did not have any profile or imputed profile or association that would link him to international government groups. The Authority found that the respondent did not share the risk profile of people or groups who may be at a real risk or a real chance of harm from Anti-Government Elements in Mazar-e-Sharif.

120    At [38], the Authority said it was satisfied that the respondent would not face a real chance of being seriously harmed as a returnee/failed (Hazara Shia) asylum seeker from the West in a major urban area like Mazar-e-Sharif.

121    At [40], the Authority considered the question of risks to returnees on some roads in Afghanistan but said that did not indicate that in a major urban area like Mazar-e-Sharif the respondent would face a real chance of being seriously harmed as a returnee from the West, or because he is a failed (Hazara Shia) asylum seeker. The Authority found that there was not a real chance that the respondent would be imputed with another profile (such as a connection to the government or international bodies) or that he would be seen as westernised or be imputed to hold any political opinion supportive of the government, that would result in him facing a real chance of being seriously harmed in an urban area such as Mazar-e-Sharif. He did not share the risk profile of people or groups who may be at a real risk or a real chance of harm from Anti-Government Elements such as the Taliban in Mazar-e-Sharif and other urban areas and the Authority did not accept such a profile would be imputed to him.

122    At [41], the Authority summarised its findings in relation to s 5J(1)(c).

123    In relation to s 36(2A), the Authority found there was a real chance that the respondent would be seriously harmed if he returned to and lived in his home area of Qarabagh. The Authority said for the same reasons it was also satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the respondent’s removal to Afghanistan, he will face a real risk of significant harm if he returns to and lives in his home area of Qarabagh.

124    The Authority then turned to the s 36(2B) question.

125    At [48], the Authority found that the respondent would not face a real risk of significant harm in Mazar-e-Sharif for reasons relating to his religion, ethnicity, actual or imputed political opinion, membership of the particular social groups of returnees from the West (westernised) or failed (Hazara Shia) asylum seekers, or for any other profile arising from those characteristics.

126    At [49], the Authority considered the question of generalised violence. It found that the risk of the respondent being harmed in generalised violence as a civilian was remote, and therefore there was not a real risk of the respondent facing significant harm on that basis within Mazar-e-Sharif.

127    As we have set out at [39] above, the Authority then, at [50], considered whether it would be reasonable for the respondent to relocate from Qarabagh to an area of the country such as Mazar-e-Sharif where there would not be a real risk that he will suffer significant harm. This is the statutory question.

128    The Authority then referred, at [51], to the questions asked by the delegate of the respondent about relocation to Kabul (but not Mazar-e-Sharif). The delegate discussed with the respondent the better opportunities for employment and access to services, as well as security. The respondent responded that every moment that Hazaras live in Afghanistan they feel they are under threat. He stated that Hazaras felt at risk and were living under a high level of pressure.

129    The Authority then referred to its 27 October 2016 letter. It noted that no further comment or submission was received at the date of the decision.

130    As we have set out at [42] above, at [54], the Authority accepted that relocating to Mazar-e-Sharif would be challenging, however there were a range of considerations that indicated the respondent could successfully relocate to the city and that it would be reasonable for him to relocate to that area.

131    We have set out above, at [43], what the Authority said at [55]-[61].

132    In our opinion, the primary judge was in error, at [159], in finding that the Authority failed to consider whether the level of violence in Mazar-e-Sharif rendered it unreasonable (as opposed to unsafe) to relocate. Similarly, in our view, the primary judge was in error, at [160], in finding that the Authority did not consider whether the established risk of generalised violence in Mazar-e-Sharif rendered it unreasonable for the respondent to relocate there. Nor do we accept, contrary to the finding of the primary judge, that the Authority only considered the risk of violence in accessing the city, not in living in it.

133    We turn to consider the authorities referred to by the primary judge.

134    In MZYQU, Dodds-Streeton J held, at [60]-[61], that the decision-maker did not consider the impact of the risk of harm in the form of generalised violence or harm (of an unspecified nature or level) due to personal circumstances on the reasonableness of the appellant’s relocation. By inference, the decision-maker proceeded on the basis that unless the harm was serious harm within the meaning of s 91R(1)(b), it was unnecessary to do so. The decision-maker’s error lay not in considering that a risk of “serious harm as required by s 91R(1)(b)” was relevant to relocation, but in implicitly treating such harm as the only level or kind of harm which could affect the reasonableness of relocation.

135    In our opinion, the same conclusion cannot be drawn in relation to the reasoning of the Authority in the present appeal, given the terms of s 36(2B)(a) which refer to “an area of the country where there would not be a real risk that the non-citizen will suffer significant harm”. This is the concept the Authority applied at [48]-[50] of its reasons.

136    In MZZJY, Davies J held, at [21], that the Tribunal dealt with the position of Shias generally in Karachi but did not consider the practical realities facing the applicant, as a person at risk of attack in Karachi because of his religion. In so doing, the Tribunal wrongly elided the question posed by the “reasonableness” criterion with the inquiry, was there a lack of “appreciable risk” of harm? The conclusion that the chance of harm was not more than remote dealt only with the consideration as to whether objectively there was an appreciable risk of persecution for a Convention reason in Karachi, but did not deal with the question as to whether it is reasonable, in the sense of practicable, to expect the applicant to live there faced with a risk of violence and where he would lack protection from the authorities, as the Tribunal accepted. The same considerations did not necessarily apply to both limbs. The fact that the risk of harm may be remote did not necessarily answer the question whether it was reasonable, having regard to the personal circumstances of the applicant, to expect the applicant to face that risk. The Tribunal was obliged to consider the practical realities for the applicant in determining whether it was reasonable to expect him to relocate. It did not do so, and in failing to do so fell into jurisdictional error.

137    In our opinion, a fair reading of the entirety of the Authority’s reasons, including the reasons in relation to s 5J(1)(c), leads to the conclusion that in the present appeal the Authority did not err in its application of the criterion whether it would be reasonable for the respondent to relocate to an area of the country where there would not be a real risk that he will suffer significant harm. In effect, the Authority found that there was no specific or generalised risk and also considered the practical realities for the respondent relocating to Mazar-e-Sharif.

138    In MZACX, Kenny J said, at [48], that the fact that a risk of serious harm, or that a person may be the victim of ethnically motivated crime, was remote did not answer the question whether it was reasonable, having regard to all the circumstances of a visa applicant, that the applicant face that risk. In considering whether or not it was reasonable for the appellant to relocate to Islamabad or Rawalpindi, the Tribunal was obliged, as Davies J said in MZZJY at [21], to consider the practical realities for him. Kenny J held, at [49], that the Tribunal failed to consider whether relocation was reasonable, having regard to all the circumstances of the appellant’s case, including whether the appellant faced a risk of harm in the cities of Islamabad or Rawalpindi by reason of his religion or ethnicity. The failure to address that question resulted in jurisdictional error.

139    In our opinion, although the Authority in the present appeal used the word “remote” in relation to the risk of the respondent being harmed in generalised violence, the word is not a technical term and the Authority immediately went on to consider part of the statutory question being the question of real risk of the respondent facing significant harm. As we have said, in effect, the Authority found that there was no specific or generalised risk and also considered the practical realities for the respondent relocating to Mazar-e-Sharif. Its conclusions at [61] included what it had said earlier, especially at [24], [46] and [48]-[49].

140    As we have said we also, with respect, disagree with the conclusion of the primary judge, at [160], that the Authority only considered the risk of violence in accessing the city, not living in it. A fair reading of the entirety of the Authority’s reasons does not, in our opinion, support that distinction.

141    We would uphold Ground 3 of the Minister’s appeal on the basis that, of itself, no jurisdictional error on the part of the Authority is disclosed. However, since the respondent’s review as a whole is to be remitted to the Authority for reconsideration according to law we note for completeness that the issue of relocation does not stand outside that remitter and it may remain for reconsideration once the Authority has considered whether to invite the respondent to respond to the information that was not before the Minister.

Issue 4

142    This issue is whether, as raised by Ground 1 of the respondent’s amended notice of contention, the primary judge erred in failing to find that the Authority in fact acted pursuant to s 473DC(3) of the Migration Act in issuing its letter of 27 October 2016 and that in that circumstance the Authority’s non-compliance with s 473DF(2) of the Migration Act, read with r 4.42(a) of the Migration Regulations, resulted in jurisdictional error.

143    We have set out at [12] above the relevant provisions of the Migration Act. As we have said, r 4.42 provides that for s 473DF(2), the period for giving information or comments in response to an invitation given by the Authority to a referred applicant is, for a referred applicant in immigration detention, three working days after the referred applicant is notified of the invitation.

144    By s 473DE, the Authority is required, in certain circumstances, to give an applicant particulars of new information. The provision does not apply to new information that is not specifically about the applicant and is just about a class of persons of which the applicant is a member.

145    The primary judge found, at [65], that the Authority thought that its communication of 27 October 2016 was required to be given by s 473DE. The primary judge also found, at [66], that that provision was not engaged by reason of s 473DE(3), as the information was country information not specifically about the respondent but “just about a class of persons of which the referred applicant is a member”.

146    The primary judge also found, at [67], that nothing in the material before the Court suggested that the Authority would have exercised its discretion under s 473DC(3) to invite the respondent to give new information.

147    As we have indicated, the respondent’s contention was that the communication from the Authority of 27 October 2016 had to be issued, and was in fact issued under s 473DC(3) so that the time limits in s 473DF(2) read with Migration Regulation r 4.42 applied. This was based on: the concept of the review as considered in BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169 (Dowsett J at [16]-[17], Besanko J at [38] and Charlesworth J at [85]); as a matter of principle, s 473DC(2) could not confer an unfettered discretion on the Authority; neither s 473DC(2) nor any other provision of Pt 7AA stated that there was no duty to inform a referred applicant of a new issue which may be dispositive of the review; the true construction of s 473DC(2) must take into account the legislative context, which led to a conclusion that the words, “or in any other circumstances” must be qualified by words such as “not otherwise required by this Act or by law”.

148    The respondent submitted that the Authority thought, erroneously, that it had a duty to so inform the respondent pursuant to s 473DE of the Migration Act. In fact, that duty arose pursuant to implied conditions of reasonableness and procedural fairness in the application of s 473DC(3), and the letter of 27 October 2016 was in fact issued under that provision, despite the Authority thinking otherwise.

149    The respondent submitted that if the letter of 27 October 2016 was indeed issued pursuant to s 473DC(3), then the time for giving information or comments in s 473DF(2), read with Migration Regulation 4.42(a) applied – that is, “3 working days after the referred applicant is notified of the invitation”. The respondent was notified of the invitation on 31 October 2016 pursuant to s 473HD(2). He was informed on 2 November 2016 that no decision would be made before 3 November 2016. Thus, a decision could be made any time on 3 November 2016. He was therefore not given the three working days from 31 October 2016 that were required by s 473DF(2), read with Migration Regulation 4.42(a).

150    The Minister submitted, in summary, that it was plain that the Authority did not understand itself to be acting under s 473DC. The respondent sought to characterise the 27 October 2016 letter as an invitation under s 473DC and ascribe consequences to it on that basis. However, the Minister submitted, the respondent’s approach faced a number of obstacles.

151    First, the Minister submitted, the letter could not have been issued under s 473DC. That provision authorised the Authority to “get new information”, relevantly by inviting a person to “give new information”. At least implicitly (in the light of s 473DB(1)), it envisaged an invitation to provide new information on a particular topic. The letter invited the respondent not to provide “information” but, rather, in completely general terms, to “comment” on two bodies of country information.

152    Secondly, the Minister submitted, the issue of an invitation under s 473DC required a discretionary decision to do so. In the present case, the evidence below did not reveal that the Authority gave any consideration to exercising the power in s 473DC(3) or that, had it realised that the duty in s 473DE(1) was not enlivened, it would have considered it necessary or appropriate to issue the letter. In those circumstances, it was not established that the preconditions to the exercise of s 473DC were met.

153    In our opinion, the primary judge did not err in concluding that the letter was not given under s 473DC. The letter was not in terms an invitation to the respondent to give new information. It follows that the information was not within either paragraph of s 473DF(1) and therefore not required “to be given within a period that is prescribed by regulation and specified in the invitation” within the meaning of s 473DF(2).

154    This conclusion flows from the terms of the letter and from the terms of s 473DC and s 473DE. Clearly, as found by the primary judge, the Authority considered that it was required by the terms of s 473DE to send the letter. That was incorrect, given the new information was not specifically about the respondent and was just about a class of persons of which the respondent was a member. But that conclusion does not mean that some other statutory basis for the letter is required to be found: Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42 per Gageler J at [135]. The invitation to comment was “nothing more than the utilisation of a bare capacity”, as described by Gageler J. Next, the terms of s 473DC show that the Authority was not acting under that provision as it was not requiring the respondent to give new information. Thirdly, the terms of s 473DE and the terms of the letter show that the Authority considered that it was acting under that provision. Fourthly, as noted by the primary judge, in its decision, at [3], the Authority said that it gave the 27 October 2016 letter under s 473DE.

155    We reject Ground 1 of the respondent’s notice of contention.

Issue 5

156    The respondent by his written submissions, made by leave after the hearing, adopted 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. Accordingly, it was submitted:

a.    Section 473DC(1) exhaustively provides for the IAA’s power to get “new information”.

b.    However, the IAA has authority outside s 473DC to ask or invite a referred applicant to provide submissions or comments (other than “new information”) about a novel issue that was not raised before the delegate when making the decision under s 65 of the Act.

c.    In so far as such a request can be made outside s 473DC, the express provision in s 473DC(2) does not operate to exclude any duty that might otherwise arise to make such a request, or to consider making such a request.

d.    The IAA has authority to consider any submissions or comments provided by the referred applicant in response to such a request.

e.    If, in response to such a request, the referred applicant provides any “new information”, the IAA must address whether that new information should be accepted and considered in accordance with the requirements of s 473DD.

157    The respondent also submitted that there were categories of actions which the Executive Government was empowered to undertake in relation to subject matters with respect to which it was empowered to act and such actions need not be defined by statute. Absent a relevant prohibition, the executive branch may ask any question that it chooses to ask, although it needed statutory authority to compel an answer. Not only was there nothing in Pt 7AA that created an express or implied statutory prohibition on the Authority seeking or receiving submissions or comments but also there was nothing to prevent the Authority notifying a referred applicant of a fresh issue that arose on the review. Such notification must, to be meaningful, be coupled with an invitation to respond. New information would normally be integral to the response. The respondent submitted that administrative bodies routinely utilised discretions in the exercise of their powers. Specific statutory authority was not required to govern those processes. For these reasons it would be wrong to say that because the Authority is a statutory body any conferral of a discretion had to be by statute. The disclosure of an otherwise unknown issue, coupled with an invitation to address that issue, which may include submissions on new information, is reasonably necessary for the administration of Pt 7AA. This was so given the implied requirement of reasonableness in the conduct of a s 473CC review. As the Authority’s letter of 27 October 2016 or a letter like it had to be issued, if it was not issued pursuant to s 473CD(3) it would have had to have been and was issued pursuant to the Authority’s non-statutory power and capacity. As disclosure of the issue had to be, and was, coupled with an invitation to comment, it followed that reasonableness required that a meaningful opportunity had to be provided for response. In the respondent’s case and in the circumstances a meaningful time was not provided. He did not even get the three working days provided for in r 4.42(a).

158    In reply, the Minister submitted, also by leave, that the correct starting point was that the Authority, as an entity created by statute, had only the powers granted to it by statute. Comparisons with a natural person, or the Executive Government were inapt. The Minister submitted that given the terms of s 473DB(1) and s 473DC(1) in particular, the appeal fell to be determined on the basis of the power which the Authority might have, but did not, exercise (or consider exercising) under s 473DC. If, the Minister submitted, the respondent contended that the power to obtain submissions was implied in s 473CC(1), questions about the application of principles of legal reasonableness arose, together with the Minister’s answers, as follows:

a)    Is there a duty to consider exercising the implied power? No, for the reasons given in the Minister’s principal submissions with respect to the duty to consider exercising the power in s 473DC(3).

b)    If the implied power does not carry with it a duty to consider its exercise, and the Authority does not consider exercising the power, can principles of legal reasonableness have any room for operation? No, for the reasons given in the Minister’s principal submissions with respect to the application of principles of legal reasonableness to the non-consideration of the exercise of the power in s 473DC(3).

c)    If principles of legal reasonableness do apply to the non-consideration of the exercise of the implied power, how is the area of decisional freedom to be identified on an outcome-focused view of reasonableness…? By reference to the statutory framework (which relevantly includes ss 473DA-473DC and 473DE) as well as the circumstances of the case.

159    In our opinion, in the circumstances of this case it is unnecessary to consider this issue as it does not arise except to the extent that we have concluded that the Authority’s mistake as to its obligation to invite comments under s 473DE did not mean that the letter of 27 October 2016 did not constitute, in fact, an invitation to comment on the new information: see [91] above.

Conclusion and orders

160    The Authority’s mistake as to its obligation to proceed under s 473DE did not immunise its procedures and its ultimate decision on the review from an analysis for legal unreasonableness. If the Authority had not made that mistake it would either have considered whether to exercise its discretion under s 473DC or it would not, in circumstances where the delegate asked the respondent questions in his visa interview about relocation to Kabul, but not about Mazar-e-Sharif. Those steps too are susceptible to analysis for legal unreasonableness: see CRY16.

161    We dismiss the Minister’s appeal, although our reasons differ from those of the primary judge. We have rejected ground 2(b) of the Minister’s notice of appeal and upheld ground 3. We will give the parties an opportunity to be heard in relation to the costs of the appeal and the costs at first instance.

Associate:    

Dated:    12 March 2018