FEDERAL COURT OF AUSTRALIA

DPI17 v Minister for Home Affairs [2019] FCAFC 43

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders dated 26 July 2018 of the Federal Circuit Court of Australia be set aside.

3.    In lieu thereof:

(a)    the second respondent’s decision dated 20 July 2017 be set aside;

(b)    the referral be remitted to the second respondent for reconsideration according to law; and

(c)    the first respondent pay the appellant’s costs of the proceeding below, to be fixed by way of lump sum.

4.    The first respondent pay the appellant’s costs of the appeal, to be fixed by way of lump sum.

THE COURT DIRECTS THAT:

5.    Within 7 days, the parties file any agreed proposed minute of orders fixing lumps sums in relation to the costs referred to above.

6.    In the absence of any such agreement, within 14 days the appellant file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note in relation to the proceedings below and the appeal.

7.    Within a further 14 days, the first respondent file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note in relation to both the proceedings below and the appeal.

8.    In the absence of any agreement having been reached within a further 7 days, the matter of appropriate lump sum figures for the appellant’s costs as referred to above be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

GRIFFITHS AND STEWARD JJ:

1    This appeal is from orders and a judgment dated 26 July 2018 of the Federal Circuit Court of Australia (FCCA). The judgment is reported as DPI17 v Minister for Immigration and Border Protection [2018] FCCA 2039. The FCCA dismissed the now appellant’s application for judicial review of a decision dated 20 July 2017 of the Immigration Assessment Authority (IAA). The IAA affirmed a decision dated 22 November 2016 by the Minister’s delegate to refuse the appellant a Safe Haven Enterprise visa (SHEV).

2    The single issue in the appeal is whether the primary judge erred in not accepting the appellant’s contention that the IAA had acted unreasonably by failing to consider whether to exercise its discretion under s 473DC of the Migration Act 1958 (Cth) (the Act) to obtain information from the appellant. For the reasons that follow, the appeal should be allowed.

Summary of background facts

3    The primary judge summarised the background facts at [6]-[26], [35]-[36] and [40]-[42]. The appellant does not challenge the correctness of the facts found by the primary judge, but does contest some of the inferences drawn by his Honour.

4    Focussing on the background facts which are directly relevant to the appeal, they may be summarised as follows. The appellant is from Sri Lanka. He is of Tamil ethnicity and Hindu religion. He left Sri Lanka in August 2012 and arrived in Australia on 10 September 2012. On 24 October 2013, he applied for a protection visa. One of the documents provided in support of that application was a statutory declaration dated 23 September 2013 sworn by the appellant.

5    As an unauthorised maritime arrival, the appellant was prevented by s 46A(1) of the Act from lodging a valid application for any visa while in Australia. This bar was subsequently lifted. On 5 January 2016 the appellant applied for a SHEV. He and his representative provided the delegate with various documents in support of the SHEV application, including a further statutory declaration dated 24 December 2015 sworn by the appellant.

6    The Minister’s delegate interviewed the appellant on 15 June 2016. In the delegate’s decision record, the appellant’s protection claims were summarised. In essence, they involved a claim that the appellant would face a real chance of serious or significant harm in respect of his Tamil ethnicity because:

(1)    he originated from the northern province of Sri Lanka;

(2)    he and his family were subject to questioning by the Sri Lankan authorities;

(3)    he had been beaten and sexually assaulted on at least two occasions by officers of the Criminal Investigation Department of the Police Force (CID);

(4)    he left Sri Lanka illegally; and

(5)    if he returned to Sri Lanka, he would return as a failed asylum seeker.

7    It is common ground on the appeal that the appellant’s claims of having been sexually assaulted by CID officers was an important element of his claim for protection.

8    The appellant also claimed that the Sri Lankan authorities genuinely suspected that he and/or his family were involved with the Liberation Tamil Tigers of Eelam (the LTTE); his brother had admitted to the Sri Lankan authorities that he (the brother) was involved with the LTTE; the Sri Lankan authorities were interested in the appellant because his uncle was a member of the LTTE or because his father had provided low level logistical support to the LTTE; and also that the authorities in Sri Lanka had an enduring suspicion of him because of the links with the LTTE and imputed political opinion of support for that organisation.

9    As noted above, on 22 November 2016, the delegate refused to grant the appellant a SHEV. Significantly, the delegate stated that she accepted that the appellant had been tortured and sexually assaulted by Sri Lankan officials on at least two occasions. Nevertheless, the delegate said that she was not satisfied that, if the appellant returned to Sri Lanka in the reasonably foreseeable future he would face a real chance of serious or significant harm. The delegate did not accept that there was any genuine suspicion by the Sri Lankan authorities of the appellant or his immediate family based on links with the LTTE. In reaching this finding, the delegate made adverse credibility findings about the appellant’s claims and evidence, particularly in relation to the appellant’s claim that his brother admitted to involvement with the LTTE. The delegate found that these aspects of the claims lacked detail, consistency (with specific reference to statements made by the appellant during his interview with the delegate) and plausibility.

10    On 28 November 2016, in accordance with the requirements of Pt 7AA of the Act, the appellant’s case was referred to the IAA for review. The appellant was advised by the IAA that the Department had provided the IAA with all documents which the Department considered to be relevant to his case, including any material which the appellant had provided to the delegate.

11    The appellant and his representative provided the IAA with a written submission dated 3 December 2016. The submission addressed certain aspects of the delegate’s reasons for decision. No submission was made in respect of the sexual assaults, apart from a reference to them in a list of factual claims accepted by the delegate. Presumably, this may have been because the delegate had accepted the appellant’s claims on that matter. Nor was any submission directed to any inconsistencies between the appellant’s statutory declaration dated 23 September 2013 and the appellant’s entry and arrival interviews dated 5 February 2013 and 21 September 2012 respectively. Presumably this may have been because no reference is made to any such inconsistencies in the delegate’s reasons for decision. As noted in [9] above, the inconsistencies found by the delegate related only to statements made by the appellant during the course of his interview with the delegate. As will shortly emerge, the IAA took a different view on the issue of the sexual assaults and inconsistencies in the appellant’s claims apart from those referred to by the delegate. These matters lie at the heart of the appeal.

12    As previously mentioned, on 20 July 2017, the IAA affirmed the delegate’s decision. The bulk of the IAA’s reasons are conveniently summarised by the primary judge at [19]-[26] of her Honour’s reasons for judgment (footnote omitted):

19.    By decision of 20 July 2017, the Authority affirmed the delegate’s decision to refuse to grant the Applicant a SHEV. The Authority was not satisfied that on any return to Sri Lanka the Applicant would face a real chance of serious or significant harm on account of, amongst other things, his Tamil ethnicity or an imputed political opinion of support for the LTTE. The Authority formed an adverse assessment of the credibility of the Applicant’s claims and evidence.

20.    The Authority did not accept that the Applicant or his family were of any interest to the Sri Lankan authorities. The Authority did not accept that the Sri Lankan authorities had targeted or harmed the Applicant and his family in the past and found in respect of the Applicant’s account of past events that the Applicant “was not recalling a personal experience”.

21.    In paragraph 20 of the Authority’s Decision and Reasons (‘the Decision Record’), the Authority said as follows:-

“On 15 June 2016, the applicant was interviewed by the delegate in connection with his claims for protection (SHEV interview). I have listened to the recording of that interview. As well the information contained with the SHEV application, I have also had regard to information provided by the applicant in a statutory declaration dated 23 September 2013, submitted in support of an invalid application for a Class XA Subclass 866 Protection visa (PV statement), and information provided in earlier interviews of 5 February 2013 (entry interview) and 21 September 2012 (arrival interview).”

22.    In paragraphs 21 to 23 of the Decision Record, the Authority said further:-

21.    Overall, I find the applicant’s evidence in relation to a number of his past experiences prior to coming to Australia to be unconvincing. In particular, I find there were a number of inconsistencies in the applicant’s evidence presented at different times that undermine the credibility of his claims.

22.    Firstly, in his SHEV statement, the applicant stated that he and his brothers were captured by the SLA in April 2009. Although he was threatened with harm, the applicant stated that he was only interrogated, and that his brothers were beaten. However, in the entry interview, the applicant stated that he too was beaten at this time.

23.    Secondly, in the SHEV interview, the applicant stated that he was not harmed by the Sri Lankan authorities while at Arunachalam camp. He attributed this to the presence of the UNHCR (United Nations High Commissioner for Refugees) at the camp. He advised the delegate that it was only those who had previously admitted to LTTE involvement that were taken for questioning. However, in his PV statement, the applicant stated that he was interrogated while in the camp.

23.    Thereafter, in paragraphs 24 to 31 of the Decision Record, the Authority set out other discreet inconsistencies in the Applicant’s claims and evidence which led the Authority to conclude as set out in paragraph 32 of the Decision Record:-

“The above inconsistencies lead me to conclude that the applicant was not recalling a personal experience in relation to the events of April 2009 and beyond.”

24.    The Court notes importantly that the inconsistencies highlighted by the Authority in the Decision Record were inconsistencies that not only existed between the two statutory declarations of the Applicant, but that existed between one or other of the statutory declarations and the Applicant’s evidence at the SHEV interview; and/or the Applicant’s protection visa interview; and/or the Applicant’s entry interview.

25.    Additionally, the Authority found a number of aspects of the Applicant’s claims to be implausible and as set out in paragraph 35 of the Decision Record found:-

“When considered cumulatively, I consider the above inconsistencies and implausibilities to be significant, and undermine the applicant’s credibility…”

26.    The Authority considered relevant country information in its consideration of the Applicant’s claims and evidence and as set out in the Decision Record.

13    There is one significant matter which is not referred to in that summary. It relates to the IAA’s finding at [36] of the decision record that, because of inter alia significant inconsistencies in the evidence (which is an apparent reference to the inconsistencies identified by the IAA in [22] to [31] of the decision record), the IAA did not accept that the appellant was a victim of sexual assault as claimed by him. This finding by the IAA is to be contrasted with the delegate’s acceptance that the sexual assaults had occurred. With specific reference to the appellant’s claims that he had been sexually assaulted, the IAA found at [27] and [28] of its reasons for decision that there were inconsistencies in relation to those claims between what the appellant had stated in his statutory declaration dated 24 December 2015 and what he said in his interview with the delegate. In particular, the IAA contrasted the appellant’s statement in his statutory declaration that he had been held for about four hours, sexually assaulted and tortured, whereas at his interview with the delegate he said that he was held for seven to eight hours and indicated that he was not sexually assaulted at this time. The IAA also found the appellant’s statement in that statutory declaration that he was intercepted again by the CID in July 2012, taken to a SLA camp, was held there for seven to eight hours, and was sexually assaulted was inconsistent with the appellant’s statement during the course of his interview with the delegate that he had been held for around two to four hours.

14    In view of the significance which the primary judge attached to some exchanges between the delegate and the appellant at the SHEV interview, it is desirable to set out the relevant passages from the transcript of that interview (emphasis added):

“[Delegate], question 306: … I’m just reading through your statement of claims from your 2013 application. Okay, so there was just a little point of difference that I just wanted to talk to you about. It says here, “In June 2013 my brothers were taken for an interrogation.” You said, “The CID told my brothers that I had already confessed and that I was in the LTTE but they wanted them to confirm this information.”

…

[Delegate], question 310:… Because I just don’t think it was in his subsequent - in that sort of detail, I guess, in his subsequent statement of claims.

[The Applicant’s agent (‘AA’)]: Yes, this was prepared initially (indistinct).

[Delegate]: Yes.

[AA]: The one 23 September.

[Delegate], question 311: Yes. So yes, so his SHEV application was submitted in December 2015 and so he said approximately two months ago police officers had gone home and handed a letter, so there was that incident. But just in his 866 application he talks about a June 2013 incident, and that’s not mentioned in his SHEV statement of claims. So I just sort of wanted to clarify that point. Okay. You’ve done really well; I know that was not easy. So even though you were never involved with the LTTE, do you have any opinions about what the LTTE were trying to achieve?

…

[Delegate], question 322: Okay, so would you have any final comments that you would like to put forward?

[Applicant]: No.

[Delegate], question 323: Okay. Do you feel like I understand your case?

[Applicant]: Yes.

[Delegate], question 324: And do you think that I’ve covered off all of the main points of your case?

[Applicant]: Yes.

[Delegate], question 325: Do you think that there’s – was there anything else that you think that we should have discussed that I haven’t questioned you about today?

[Applicant]: No.

[Delegate], question 326: Alright [REDACTED], I’ll hand over to you to give a submission if you like.

[AA]: Yes, thank you, [REDACTED]. At the end just to clarify the most important thing that happened to him was the sexual assault or whatever you call it, the seriousness of that incident. At this point if it’s possible to confirm whether you accept that incident?

[Delegate]: Yes, I think he’s provided quite a lot of detail there and I’ve…

[AA]: Yes, yes.

[Delegate]: And I was watching his body language and his delivery and I’m satisfied that it occurred as claimed.

[AA]: Okay. Yes, thank you for that. Because I think that’s the core of his claim, considering he’s not an LTT tiger or the fact that his brother was not in the LTTE.

…

[AA]: I also request you to extend the doubt with regard to certain inconsistencies. The 2013 statement was taken a long time ago, and then subsequently I had access to the 2013 statement and then regarding - I have to take into consideration of that statement as well, because I did not see the initial statement, (indistinct) the more recent one.

[Delegate]: Yes.

[AA]: So I request you to extend the benefit of the doubt, especially as the incident did not (indistinct) it is accepted. So he falls in the category of vulnerable people, and therefore I request you to extend the benefit of the doubt, if there is – it’s required.

[Delegate]: Yes, my observation of the statement of claims - I mean the discrepancies aren’t major, and I guess given what’s happened to him, he doesn’t - you know, sometimes it’s a bit hard to try and get out some of those details through it.

[AA]: Yes, yes.

[Delegate]: So I sort of saw that maybe in the statement of claims as well, so I personally am not putting a lot of weight on those discrepancies because on the whole I’ve found them to be consistent, so – – –

[AA]: Thank you for that, I appreciate it.”

The primary judge’s reasons for judgment summarised

15    The single ground of review which was pressed in the FCCA was that the IAA had

acted unreasonably in the exercise of its discretion or, alternatively, constructively failed to exercise its jurisdiction, in failing to exercise or failing to consider whether to exercise its discretion under s 473DC to get information from the applicant or its representative.

Among the cases relied upon by the appellant (who was represented by different counsel below) was Barker J’s decision in DFW16 v Minister for Immigration and Border Protection [2018] FCA 746 (DFW16).

16    In essence, the appellant contended below that the IAA acted unreasonably in not exercising its discretion under s 473DC, in circumstances where the IAA made adverse findings against the appellant based upon material which was before the delegate, but which the delegate herself had not relied upon. In particular, the appellant complained that he should have been interviewed by the IAA and given an opportunity to comment on or explain supposed inconsistencies between his 23 September 2013 statutory declaration and the information submitted as part of his 5 January 2016 SHEV application, including a second statutory declaration given on 24 December 2015. This was relevant to the issue whether or not the sexual assault had occurred as claimed by the appellant.

17    Section 473DC of the Act provides:

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.

18    The primary judge accepted that the power in s 473DC had to be exercised reasonably (citing Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600 (M174) and Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (CRY16)).

19    The primary judge accepted the Minister’s submission that, “even if the delegate did not refer to the protection visa statutory declaration in her decision, the [appellant] and his representative were, or at least should have been, well aware that the Authority might have regard to that statutory declaration and any inconsistencies between it and the SHEV statutory declaration, in particular because they were aware that the earlier statutory declaration was before the delegate and therefore would be before the Authority” (at [36]).

20    The primary judge also accepted the Minister’s submission that it was not unreasonable for the IAA not to get new information from the appellant under s 473DC(3). The primary judge made reference at [40] to the fact that at the interview with the delegate on 15 June 2016:

(1)    the delegate referred to the appellant’s protection visa statutory declaration, and observed that it was not consistent with the SHEV statutory declaration; and

(2)    the appellant and his representative made submissions to the delegate about inconsistencies between the statutory declarations.

21    The primary judge noted that, although the delegate made no explicit reference to these matters in the decision record, passages from that transcript (as set out in [14] above) demonstrated that there was a dialogue between the delegate and the appellant and his representative as to inconsistencies between the two statutory declarations and an opportunity was afforded to them to make submissions to the delegate about any such inconsistencies.

22    Having regard to these passages from the interview with the delegate, the primary judge found that the case was distinguishable from DFW16 (see at [44]).

23    The significance which the primary judge attached to the transcript extracts is reflected in [43] of her Honour’s reasons for judgment:

43.    The above extracts from the transcript of the Applicant’s interview with the delegate clearly indicate that the two statutory declarations were material before the delegate, and that the delegate conveyed to the Applicant, and the Applicant’s representative, that such material was in fact before her. Furthermore, the delegate conveyed that there were inconsistencies and discrepancies in respect of the claims made in the two statutory declarations, and provided to the Applicant and his agent an opportunity to make submissions to the delegate about any of those inconsistencies.

24    For these reasons, the primary judge rejected the appellant’s claim of legal unreasonableness.

The appeal

25    The single ground of appeal is as follows (without alteration):

The IAA acted unreasonably in the exercise of its discretion, or alternatively, constructively failed to exercise its jurisdiction, in failing to exercise or failing to consider whether to exercise its discretion under s473DC to get information from the applicant or his representative.

Particulars

a)    The delegate made no reference to the applicant's invalid application for a subclass 866 protection visa or any information provided as part of that application.

b)    The IAA at [20]-[32] relied on a number of supposed inconsistencies between the applicant's 23 September 2013 statutory declaration accompanying his invalid protection visa application and the information submitted as part of his 5 January 2016 SHEV application.

c)    The applicant was not on notice that the material accompanying the invalid 2013 protection visa application would be considered by the IAA in circumstances where it had not been considered by the delegate.

d)    The applicant was not given an opportunity to comment on or explain supposed inconsistencies between his 23 September 2013 statutory declaration and information submitted as part of his 5 January 2016 SHEV application.

e)    The IAA did not exercise, or alternatively, did not consider whether to exercise its power under s473DC to invite the applicant to an interview.

f)    For the reasons given by Barker J in DFW16 v Minister for Immigration and Border Protection [2018] FCA 746 [56]-[71], the IAA's failure to exercise or consider whether to exercise its power under s473DC was unreasonable in the circumstances of the case."

and

g)    the Federal Circuit Court has erred by accepting the conclusion of the tribunal and holding there was no legal unreasonableness on the part of the Authority, not considering, in respect of inconsistencies between the statutory declarations, whether to get new information from the Applicant under s.473DC(3) of the Act, nor indeed, legal unreasonableness on the part of the Authority in not obtaining new information from the Applicant.

26    At the hearing of the appeal, Mr Aleksov (who appeared pro bono for the appellant) clarified that he only pressed that part of the ground of appeal which related to the alleged unreasonableness of the IAA’s failure to consider whether or not to exercise its discretion under s 473DC.

The appellant’s submissions summarised

27    The appellant’s outline of written submissions is a model of clarity and brevity. It deserves setting out in full (footnote excluded):

1.    This is an appeal from a decision of the Federal Circuit Court (the FCC), dismissing an application for judicial review in respect of a decision of the Immigration Assessment Authority. The appellant alleges that the decision of the IAA is affected by legal unreasonableness and that the FCC was wrong not to accept this argument.

2.    The factual background to this matter is set out in FCC Reasons [6]-[26], [35]-[36], [41]-[42]. The appellant does not challenge factual findings made by the FCC but he does challenge the correctness of inferences made by the FCC.

3.    The applicable principles are set out in Minister for Immigration v CRY16 (2017) 253 FCR 475 and Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600. The applicant does not rely in this appeal on DFW16 v Minister for Immigration [2018] FCA 746, and its correctness does not arise for determination.

4.    During the interview with the delegate (extracted at FCC Reasons [42]), the appellant’s attention was directed to the “PV statement” that he had made in connection with his earlier invalid protection visa application. At that interview, the appellant’s representative submitted that the appellant should be given the benefit of the doubt in relation to any inconsistencies that arose between the PV statement and other evidence given by the applicant. The delegate specifically stated that she would not put a lot of weight on those discrepancies because on the whole the appellant was found to be consistent in his evidence. The appellant’s representative thanked the delegate for adopting that course, and no more was said about the matter at that interview.

5.    The appellant did not advance any post-interview material directed to explaining any inconsistencies between the PV statement and other evidence given by the appellant. That is not surprising because the understanding between the appellant’s representative and the delegate was that no adverse weight would be given to any such inconsistencies (and the point need not be addressed further).

6.    The delegate did not give any indication that she would depart from this representation and was indeed faithful to that representation in the decision.

7.    In the course of seeking to perform its review function, the IAA listened to the recording of the interview with the delegate (IAA Reasons [20]), which would have revealed the delegate’s representation. When combined with a fair reading of the delegate’s reasons, it would – or at least should – have been obvious that a significant (if not the) reason why the review material did not contain the appellant’s explanation for any inconsistencies arising from the PV statement was because of the delegate’s representation about their irrelevance, and the applicant’s reliance thereupon (to be inferred from the representative’s thanking of the delegate at hearing, and his subsequent silence).

8.    Yet, the IAA made five findings, crucial to the outcome of the review, that were adverse to the appellant’s credit as witness of truth based on inconsistencies between the PV statement and other evidence given by the appellant.

9.    The IAA – if acting reasonably – should have appreciated that the representations of the delegate were very likely the reason for the absence of any explanation for the inconsistencies arising from the PV statement. Adopting an analogy with the rules of procedural fairness, the IAA should have appreciated that the delegate had made a representation that would have very likely led to the appellant thinking that he could safely adopt a procedure of not supplying further evidence to the delegate in relation to the PV statement. In such circumstances, an unnotified departure from that representation would be likely to amount to unfairness.

10.    Given the significance attached by the IAA to the PV statement, the fact that the appellant had not given evidence to the delegate explaining those inconsistencies and the fact that this state of affairs was attributable to actions of the delegate, and the obvious likelihood that the appellant would have relevant and important evidence to give in relation to any inconsistencies arising from the PV statement, it was legally unreasonable for the IAA not to consider whether to invite the appellant to give new information in that respect.

11.    Whilst the rules of procedural fairness do not directly equate with the rules of legal unreasonableness, it is submitted that the former are informative of the latter in relation to allegations of unreasonableness affecting an exercise, or failure to consider an exercise, of a procedural discretion such as that in s 473DC – especially where, as here, the raison d'être of the discretion is to ensure that the decision maker has before them all relevant information needed to make the correct decision (and is applicable with equal force where that information is in the possession of an applicant, the department, or third parties). That is not to undermine the role of s 473DC(2) (as discussed in CRY16), and it does not anticipate whether the IAA would in fact determine that the new information met the requirements in s 473DD. Rather, it is to attack the preliminary failure of the IAA in simply glossing over the reality that was obvious from the review material, being that the IAA probably (and at least possibly) did not have all of the material needed to make the correct decision.

12.    The FCC was wrong not to accept this argument. It follows that the appeal should be allowed, and consequential orders made to remit the matter to the IAA for reconsideration. The appellant should be awarded his costs of the appeal and his costs in the FCC.

The Minister’s submissions summarised

28    The Minister emphasised that the appellant and his representative were informed by the delegate that the Department had provided the IAA with her decision, any material the appellant had given to the Department before the refusal decision was made, any other material the Department considered to be relevant to the review, and the appellant’s contact details. He emphasised that the delegate also told the appellant and his representative that the IAA would “review the refusal decision based on the information that was before the department’s decision maker”. These matters were then substantially confirmed by the information which the IAA provided to the appellant in respect of the referral process.

29    The Minister acknowledged that the IAA has a power under s 473DC(1), subject to Pt 7AA, to get any documents or information that was not before the Minister or delegate when the primary decision was made under s 65 which the IAA considers may be relevant. He emphasised that s 473DC(2) expressly provides that the IAA “does not have a duty to get, request or accept, any new information …in any… circumstances”. Significantly, the Minister also accepted that the ground of legal unreasonableness was available in respect of the IAA’s consideration whether or not to exercise its power under s 473DC. The Minister contended that the content or standard of legal unreasonableness fell to be determined by reference to the statutory framework and the particular facts and circumstances in which the issue arises.

30    The Minister emphasised that, under s 473DB(1) and subject to Pt 7AA, the IAA is obliged to review a fast track reviewable decision by considering the review material provided to it under s 473CB “without accepting or requesting new information” and “without interviewing the referred applicant”.

31    The Minister also drew attention to other features of the statutory scheme which he submitted were relevant to identifying the scope and purpose of s 473DC. Those features include the heading to s 473DB, which describes the IAA’s function as involving review “on the papers”. Another feature is the exhortation in s 473FA for the IAA to pursue the objective of providing a mechanism of “limited review” that is “efficient, quick, free of bias and consistent with Division 3”.

32    As to CRY16, the Minister submitted that there was “a critical distinction” between the circumstances there and here because, the IAA here did not, for the first time on review, consider a new factual matter going to the appellant’s claims and about which he was likely to have further information. Rather, the IAA “simply took a different view of the material already considered by the delegate”. It was in this context that the Minister placed heavy reliance upon what the Full Court said in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551 (DGZ16) at [72]:

72.    In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.

33    At [35] of his outline of submissions, the Minister summarised why he contended that it was not legally unreasonable for the IAA to have regard to the protection visa statutory declaration and any inconsistencies between that statutory declaration and other evidence without considering the exercise of the power under s 473DC (footnotes omitted):

35.    Even if the delegate did not refer to the protection visa statutory declaration in her decision, the appellant and his representative were, or at least should have been, aware that the Authority might have regard to that statutory declaration and any inconsistencies between it and other evidence. In particular, they were, or at least should have been, aware that that statutory declaration had been before the delegate and would therefore be before the Authority, and the Authority would form its own view about its contents. Indeed, the Authority was required, in the conduct of its review, to reach its own view of the matter on all of the materials before the delegate and, in doing so, it was in no way bound to follow the findings and reasons of the delegate.

Analysis

34    As is evident from the summaries of the parties’ outlines of submissions above, there was substantial agreement as to the relevant principles. That is perhaps unsurprising having regard to the High Court’s decision in M174 and several recent decisions of this Court, which have established some general principles.

35    The plurality’s judgment in M174 (Gageler, Keane and Nettle JJ) establishes the following propositions:

(1)    as stated in the simplified outline of Pt 7AA in s 473BA of the Act, Pt 7AA provides “a limited form of review” of a “fast track decision” which is constituted by a refusal to grant a protection visa to an applicant who is statutorily designated to be a “fast track applicant” (at [1]);

(2)    the task of the IAA in conducting a review of a fast track reviewable decision is not to correct error on the part of the Minister or a delegate, but rather the IAA “is engaged in a de novo consideration of the merits of the decision that has been referred to it.” The IAA must consider the application afresh and determine for itself whether the criteria for the grant of the visa have been satisfied (at [17]);

(3)    the various powers conferred upon the IAA by Div 3 of Pt 7AA (including s 473DC) are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, as explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li) (at [21]);

(4)    the term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE “as limited to ‘information’ (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b).” These two conditions are that the information was not before the Minister or delegate when the protection visa decision was made, and the IAA considers the information to be relevant (at [24]);

(5)    although there is no general requirement for the IAA to give to the applicant material provided to the IAA by the Secretary (s 473DA(2)), there is nothing in Pt 7AA to preclude the IAA from giving the whole or some part of that material to the applicant in the context of exercising the power under s 473DC(3) to invite the giving of new information and s 473DA(2) does not address what may be required of the IAA in particular circumstances in order to exercise that power reasonably ([26]); and

(6)    s 473DE is concerned to ensure that the referred applicant has an opportunity to address new information that has been, or is to be considered by, the IAA under s 473DD and that would be the reason, or a part of the reason, for affirming the fast track reviewable decision (at [35]).

36    Both Gordon and Edelman JJ, who delivered separate reasons for judgment in M174, agreed that the power conferred by s 473DC was subject to the principles in Li concerning legal unreasonableness (see at [86] and [97] respectively). To similar effect, see CRY16 at [82] and [83].

37    Other relevant principles which guide the application of the ground of review for legal unreasonableness are summarised in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 353 ALR 408 (SZVFW) and Minister for Immigration and Border Protection v Haq [2019] FCAFC 7 (Haq) at [31]-[37] per Griffiths J (with whom Gleeson J agreed). Three points deserve particular emphasis. First, legal unreasonableness is “invariably fact dependent and requires evaluation of the evidence” (see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 (Singh) at [47] per Allsop CJ, Robertson and Mortimer JJ and see also SZVFW at [84] per Nettle and Gordon JJ). Secondly, the correct approach is to apply the relevant general principles to the particular factual circumstances of the case and not to engage in an analysis which merely involves identifying particular factual similarities or differences between individual cases (Singh at [48] and Haq at [32]). It may well be that, for this reason, the appellant made clear that, on the appeal, he did not rely on DFW16. As Thawley J pointed out in CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (CCQ17) at [42], there are no fixed categories of circumstances in which it would be legally unreasonable to fail to consider the discretion in s 473DC. Thirdly, having regard to the clear terms of s 473DA (which provides that Div 3 of Pt 7AA and ss 473GA and 473GB are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews), the starting point for analysis in a case such as this which raises the ground of legal unreasonableness is not through a “natural justice lens” (DGZ16 at [69] and [72] per Reeves, Robertson and Rangiah JJ). Fourthly, as Thawley J correctly stated in CCQ17, merely because there has been a failure to consider the exercise of the power in s 473DC does not of itself involve error, let alone a jurisdictional error.

38    In CCQ17 at [51], Thawley J helpfully identified the following three essential steps in determining whether an established failure to consider exercising a discretionary power was legally unreasonable:

 (1)    identify the failure with precision;

(2)    examine the terms, scope and purpose of the statutory power which the decision-maker failed to consider; and

(3)    evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense.

39    Each of those three steps is important but it is the third of those steps which highlights the fact that a mere failure to consider the exercise of the power under s 473DC is insufficient per se to give rise to jurisdictional error.

40    It is appropriate to say something more about DGZ16 and the Minister’s strong reliance upon it. In particular, the Minister pointed to what the Full Court said in DGZ16 at [72] (which is set out in [32] above). That passage should be read in the context of the particular facts and circumstances of that case. As the Full Court had earlier emphasised at [70], that was not a case where the IAA had decided a point which was not the point decided by the delegate. Instead, as is made clear at [74], the Full Court was responding there to a contention made by the appellant there that, merely because the IAA had before it the appellant’s submissions and had accepted the new information in those submissions, the IAA was obliged, whether as a matter of legal reasonableness or otherwise, to invite the appellant to respond once the IAA formed specific reservations about the appellant’s case. It was in this context, and with particular reference to the circumstances of that case, that the Full Court stated at [76] that it was open to the IAA to disagree with the delegate’s evaluation of the material without providing the appellant with an opportunity to respond.

41    These statements by the Full Court should not be viewed as establishing a general principle that the IAA is never obliged to provide the appellant with an opportunity to respond if the IAA disagrees with the delegate’s evaluation of material.

42    It is significant that the Full Court in DGZ16 viewed the case there as being different from that in CRY16 (where the IAA affirmed the delegate’s decision to refuse the SHEV but on a different basis of reallocation which had not been addressed by the delegate). In DGZ16, their Honours expressly stated at [70] that in DGZ16 that “there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s 473DC(3)”. This statement serves to underline the central importance of paying close attention to the particular facts and circumstances in which the issue of legal unreasonableness is raised.

43    Before turning to the particular facts and circumstances here, it is relevant to make some further observations. In performing its overarching duty to review a referred decision, the IAA is exhorted “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)” (see s 473BA of the Act). Performance of that duty is conditioned upon the IAA observing the obligations imposed upon it by Pt 7AA and by considering, in appropriate cases, whether or not to exercise the discretions which are conferred upon it. As the plurality noted in SZMTA at [9], with reference to the scheme of review under Pt 7 of the Act, some conditions “are implicit in the statutory scheme and some of which are implied through the operation of common law principles of interpretation”. Although those observations were directed to the review regime under Pt 7, we consider that they apply equally to the review regime under Pt 7AA. One of the implied conditions, which arises from the operation of common law principles of statutory construction, is the condition that consideration of the exercise of the statutory discretionary power of the IAA under s 473DC is subject to the test of legal reasonableness.

44    Against the background of these general legal principles, we now turn to apply those principles to the particular circumstances of this case. The first point to note is that the Minister did not contest the proposition that that the IAA had in fact failed to consider the exercise of the power under s 473DC in relation to the issue whether or not the sexual assaults had in fact occurred or in relation to the relevant inconsistencies. That is the basis upon which the proceeding had been conducted below and the Minister’s counsel, Mr Knowles, confirmed that the Minister did not contend that the appeal should be conducted on a different basis. This is an important concession, which was properly made. In other cases, an applicant may confront some difficulty in discharging the onus of proof of demonstrating on the balance of probabilities that the IAA did not consider the exercise of the power in relation to the relevant issue. That matter does not arise here, given the Minister’s concession (see eg ASB17 v Minister for Home Affairs [2019] FCAFC 38 at [46]-[49]).

45    For the following reasons, we consider that the IAA’s failure to consider whether or not to exercise its power under s 473DC in respect of either the issue of the sexual assaults or the relevant inconsistencies was legally unreasonable because, in the circumstances, the failure was unreasonable or plainly unjust (see Li at [76] per Hayne, Kiefel and Bell JJ and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [10]-[11] per Allsop CJ, [76] per Griffiths J and at [101] per Wigney J). It is convenient to deal with each of those matters in turn.

46    As to the sexual assaults:

(1)    It would have been evident to the IAA from the extracts from the transcript of the appellant’s interview with the delegate (see [14] above) that the delegate’s acceptance of the appellant’s claim that he had been tortured and sexually assaulted by Sri Lankan officials on at least two occasions (as stated in the decision record), was based primarily on the delegate’s assessment of the appellant’s demeanour and credibility when this matter was discussed in the course of the interview with the delegate.

(2)    The IAA must have been aware of the delegate’s positive assessment of the appellant’s demeanour because the IAA member stated at [20] of his reasons for decision that he had listened to the recording of that interview.

(3)    In those circumstances, if the IAA was minded to come to a different determination on the central question whether it was satisfied that the sexual assaults had occurred, unless there was available to the IAA a sufficient independent evidentiary basis to support such a determination without the IAA itself inviting the appellant to attend for an interview and conduct its own assessment of his demeanour, it was legally unreasonable for the IAA to fail to consider whether or not it should exercise its powers under s 473DC.

(4)    As the plurality observed in Fox v Percy [2003] HCA 22; 214 CLR 118 at [30]-[31], demeanour is not the only aspect of a witness’s evidence which may lead to credibility findings. Such findings might result from inferences drawn from probative evidence or material. This is not the case here. That is because part of the IAA’s reasons for its adverse finding on the appellant’s credibility, as summarised in [35] of its reasons for decision, was based on the cumulative effect of inconsistencies and implausibilities in the appellant’s evidence, as set out by the IAA in [22] to [34] inclusively. Those inconsistencies, together with the other matters referred to in [35] of the IAA’s decision record were viewed as undermining the appellant’s credibility. That adverse finding then flowed through to the IAA’s rejection in [36] of its decision record of the appellant’s claims to have been the victim of sexual assault.

(5)    For reasons which will shortly be stated, some of the inconsistencies as found by the IAA were at odds with the delegate’s separate statement to the appellant and his representative that those particular inconsistencies were, in effect, inconsequential. Consistently with what they were told by the delegate at the end of the interview, the delegate placed no weight on them. As will shortly be explained, in the particular circumstances here, while it was open to the IAA to come to a different view on the significance of those and other inconsistencies, in the case of the inconsistencies which the delegate viewed as inconsequential (the relevant inconsistencies), it was legally unreasonable for the IAA to fail to consider whether or not to exercise its power under s 473DC in relation to those relevant inconsistencies.

47    As to the relevant inconsistencies:

(1)    Although it is true that, during the course of the appellant’s interview with the delegate, the issue arose of inconsistencies between what was stated in the statutory declaration dated 23 September 2013 and other evidence given by the appellant, the delegate explicitly stated that the “discrepancies aren’t major” and she would not put “a lot of weight on those discrepancies” because, on the whole, she viewed the appellant’s evidence as being consistent.

(2)    Presumably in reliance upon those statements, the appellant did not address the inconsistencies in his post-interview submissions. According to what the delegate said at the end of the interview, she viewed the relevant inconsistencies as inconsequential and they did not figure in the delegate’s reasons for refusing to grant the appellant a SHEV.

(3)    It is also relevant that the transcript of interview indicates that the appellant’s migration agent raised with the delegate the issue of inconsistencies and indicated to the delegate that these inconsistencies may be attributable to the fact that the agent did not have access to all the appellant’s prior statements, potentially leading to some misunderstanding.

(4)    It was open to the IAA to take a different view as to the significance of the relevant inconsistencies (bearing in mind the nature of the IAA’s review function), but in view of the matters described immediately above, the IAA was obliged to consider and determine whether or not it should exercise its discretion under s 473DC and invite the appellant to provide any “new information” relating to the relevant inconsistencies, whether at an interview or otherwise. There is nothing to suggest that the IAA turned its mind to this requirement. In the particular circumstances, it was legally unreasonable for it not to do so.

48    It is necessary to now determine whether or not the IAA’s error in not considering the possible exercise of its power under s 473DC in respect of the two relevant matters is material and involves jurisdictional error (see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780 (Hossain) and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (SZMTA)). In Hossain, the plurality (Kiefel CJ, Gageler and Keane JJ) said the following at [25] and [30-[31] (footnotes omitted):

25.    To return to the explanation of Professor Jaffe, jurisdictional error is an expression not simply of the existence of an error but of the gravity of that error. In the language of Selway J, the unavoidable distinction between jurisdictional errors and non-jurisdictional errors is ultimately "a distinction between errors that are authorised and errors that are not; between acts that are unauthorised by law and acts that are authorised".

…

30.    Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of "the possibility of a successful outcome", or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was "so insignificant that the failure to take it into account could not have materially affected" the decision that was made.

31.    Thus, as it was put in Wei v Minister for Immigration and Border Protection, "[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act". Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.

49    In SZMTA, the plurality (Bell, Gageler and Keane JJ) said at [45] and [46]:

45.    Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

46.    Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.

50    To use the language of the plurality in Hossain, the “condition” which was not complied with in this case is the implied condition of legal reasonableness which attaches to the IAA’s decision whether or not to consider the exercise of its power under s 473DC.

51    More recently, in EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 at [42], Allsop CJ, Markovic and Steward JJ described the relevant issue as whether the error “could have affected the outcome of the review” (emphasis in original). Their Honours said that whether that is so will normally turn on an analysis of the appellant’s claims and the reasons given by the IAA. That statement reflected the facts of that case. A modified approach, is required, however, in this case because the IAA gave no reasons on the issue (presumably because the member never turned his mind to it).

52    As the plurality stated in SZMTA at [46], the question of materiality is an ordinary question of fact in relation to which the judicial review applicant bears the onus of proof. For the following reasons, the error here was material. If the IAA had turned its mind to exercising the relevant power and then invited the appellant to provide “new information” the IAA might have assessed the significance of the relevant inconsistencies differently. Similarly, if the IAA considered and then proceeded to request and receive additional information or evidence that satisfied it that the sexual assaults had in fact occurred, as the Minister properly acknowledged, the IAA’s ultimate decision might have been different.

53    Given the significance which the IAA attached to the relevant inconsistencies, the outcome of the review could have been different. Although the IAA also referred to other matters in affirming the delegate’s decision, the relevant inconsistencies undoubtedly formed part of the IAA’s reasons for affirming the delegate’s decision. The Minister did not contend on the appeal that the inconsistencies were causally irrelevant. Nor did the Minister contend that, for the appellant to succeed, he needed to adduce evidence in this Court as to what he would have said or provided if he had been given the opportunity by the IAA.

Conclusion

54    For these reasons, we consider that the appeal should be allowed, with costs. Appropriate orders should also be made in respect of the FCCA’s orders and the remitter to the IAA. It is noted that the appellant expressly disavowed any request to have the referral remitted to a different member of the IAA. The proper constitution of the IAA for the purposes of the reconsideration of the referral is a matter for the President of the Administrative Appeals Tribunal.

Associate:

Dated:    15 March 2019

REASONS FOR JUDGMENT

MORTIMER J:

55    I have had the advantage of reading in draft the joint reasons for judgment of Griffiths and Steward JJ. Subject to one matter, I agree with the orders proposed by their Honours, and gratefully adopt their summary of the background to the appeal, and the issue which arises for determination.

56    As their Honours state, the single issue in the appeal relates to what is agreed to have been the failure of the Immigration Assessment Authority (“IAA”) to consider whether to exercise its discretion under s 473DC of the Migration Act 1958 (Cth) (“the Act”) to obtain new information from the appellant, whether by way of an interview or in writing, for the purposes of its review of the decision made by the Minister’s delegate to refuse the appellant a Safe Haven Enterprise visa (“SHEV”).

57    Not without some hesitation, and on one basis only, I accept the appellant’s contention that no decision-maker in the position of the IAA, acting reasonably and in the circumstances of its review under Pt 7AA of the Act, would have failed to consider whether to exercise the discretion conferred on it by s 473DC.

58    The reason for my conclusion rests on the fact that the delegate’s acceptance of the appellant’s claim to have been sexually assaulted and raped by members of the Sri Lanka CID was based on her assessment of the appellant during her interview with him. It was the delegate’s acceptance of the veracity of the appellant’s account because of the way he described his experience, and his body language when describing it, which led her to discount some apparent inconsistencies in the account he had given about these attacks. Where people, fallible as we all are, are required to recount past events several times, over several years, in different circumstances, and especially circumstances of some pressure, a level of inconsistency might well be explicable and excusable, as the Full Court explained in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [23]-[25]. On the other hand, the decision-maker might determine that any inconsistency or inconsistencies are properly a probative indication of either unreliability or a lack of credibility: see AVQ15 at [28].

The delegate’s reasoning

59    While the IAA is required to conduct a fresh merits review and to decide for itself whether an applicant meets the relevant criteria for the grant of a protection visa, in order to decide whether or not to affirm a “fast track reviewable decision” under Pt 7AA of the Act, a delegate’s reasoning and findings contribute to framing the review before the IAA. Under s 473CB(1)(a), a statement setting out the delegate’s findings of fact, references to the evidence on which those findings were based, and reasons for the (unfavourable) decision, must be given to the IAA. If a recording of the delegate’s interview with an applicant is given to the IAA, it is given because the Secretary has formed the opinion, for the purposes of s 473CB(1)(c), that the recording is relevant to the review.

60    The reason given by the delegate for accepting the appellant’s account of the sexual assaults and rape was as follows:

With regard to the previous harm the applicant claims to have experienced, I have accepted his submission that he was tortured and sexually assaulted by Sri Lankan officials on at least two occasions. I found the applicant’s submission regarding the sexual assaults and torture he experienced was consistent with investigations conducted by the 2016 International Truth & Justice Project Sri Lanka into the sexual assaults of Tamils by Sri Lankan government or military officials.

(Footnotes omitted.)

61    It is also necessary to set out the relevant part of the interview transcript at which the delegate confirmed to the appellant’s agent that she accepted this part of the appellant’s account:

[AGENT]: Yes, thank you, [REDACTED]. At the end just to clarify the most important thing that happened to him was the sexual assault or whatever you call it, the seriousness of that incident. At this point if it's possible to confirm whether you accept that incident?

[DELEGATE]: Yes, I think he's provided quite a lot of detail there and I've - - -

[AGENT]: Yes, yes.

[DELEGATE]: And I was watching his body language and his delivery and I'm satisfied that it occurred as claimed.

(Emphasis added.)

62    The delegate also considered the appellant’s account of the sexual assaults and rape in the part of her reasons dealing with the refugee criteria assessment under s 36(2)(a) of the Act:

In making my assessment I have given serious consideration to the sexual assault the applicant suffered on two occasions in 2012, and whether this would place him at future risk as a result of the previous assaults. The applicant’s obvious distress at the protection visa interview demonstrated to me that he has a subjective fear of returning to Sri Lanka. As I earlier found the applicant was not suspected by the Sri Lankan authorities of links to the LTTE, I am not satisfied the applicant was specifically targeted by Sri Lankan authorities for these assaults as claimed. I consider it more likely the applicant was attacked on account of his race as a Tamil. I have been unable to independently corroborate the applicant’s claim that the 64th Division Camp is still operational in his home area. Whilst nevertheless heinous crimes, the circumstances suggest the attacks were indiscriminate and generalised acts of violence perpetrated by individual officers rather than the applicant being specifically targeted. As I advised the applicant at the protection visa interview, the purpose of this assessment was a forward-looking test. Whilst I acknowledge that parts of Sri Lanka still have a military presence, I am not satisfied the applicant will be targeted in the future. Further, I am also not satisfied the applicant is any more vulnerable or faces any greater chance of being the victim of generalised crime/violence in the reasonably foreseeable future than any other person.

(Emphasis added and footnotes omitted.)

63    Despite accepting the appellant’s narrative about the sexual assaults and rape, the delegate did not accept the appellant’s fear of persecution on return to Sri Lanka was well-founded, nor was she satisfied there were reasonable grounds to believe there was a real chance he might suffer serious harm in the reasonably foreseeable future.

64    It is also evident, having regard to the delegate’s reasons, that she made adverse credibility findings about some of the appellant’s claims and evidence on the basis that they lacked sufficient detail, consistency and plausibility. That is why there may well have been more than one answer, rationally open and reasonably reached, about whether the power in s 473DC(1) (read with subsection (3)) should have been exercised by the IAA when reviewing the delegate’s decision. Thus, the issue in this appeal is whether consideration should have been given to its exercise.

65    The submissions made on behalf of the appellant to the IAA relevantly stated:

(a)    that the delegate accepted the appellant had been “tortured and sexually assaulted by Sri Lankan officials on at least two occasions”;

(b)    “[t]he fact that the applicant was tortured, raped and required to report at the CID office which he did until he departed for Australia is sufficient enough to attract adverse attention if he is returned to Sri Lanka”;

(c)    “[t]he delegate referring to the incidents of sexual assault (2 incidents) and torture, formed the view that ‘the applicant was attacked on account of his race as a Tamil’ and not for reasons claimed”;

(d)    “[i]t is unreasonable to infer that a Tamil who has been tortured and sexually assaulted by the military falls within the scope of a victim of generalised crime / violence. Having accepted a – f above whilst also accepting that ‘parts of Sri Lanka still have a military presence’ it is reasonable to infer that the applicant faces a real chance of similar harm which could not be described generalised violence as such acts could be perpetrated by individual officers”;

(e)    “[t]he more recent ICG report of May 2016 further states at page 17,

there continue to be credible reports of torture and sexual abuse by “counterterrorist” police and military intelligence units against Tamils returning to the country who are suspected of past LTTE involvement”.

66    The delegate’s positive findings about the appellant’s claims to have been sexually assaulted and raped were an important premise of the submissions made on his behalf to the IAA.

67    The IAA obviously considered these submissions, as its reasons at [4]-[7] make clear. At [7] of its reasons, the IAA stated the appellant’s submissions contained “new information” by way of country information, which, for the reasons stated at [6] of its reasons, it decided not to consider. In reaching that conclusion, the IAA did not refer to the ICG report extract (see [65(e)] above) referred to in the appellant’s submissions.

68    The IAA referred to the appellant’s claims of sexual assault and rape in its reasons at [17] and [18] :

About a week later [having referred to the resettlement of the appellant and his family in their home area two months earlier, in February 2012], the applicant was detained by two CID officers, tortured, sexually assaulted, and released about four hours later when his mother came to the CID office. From that point, he was required to report to the CID office weekly and required to sign a register.

In July 2012, the applicant was again detained by two CID officers, tortured, sexually assaulted, and raped. It was for this reason the applicant fled Sri Lanka in August 2012.

69    The IAA then made this general finding at [21]:

Overall, I find the applicant’s evidence in relation to a number of his past experiences prior to coming to Australia to be unconvincing. In particular, I find there were a number of inconsistencies in the applicant’s evidence presented at different times that undermine the credibility of his claims.

70    A number of inconsistencies were then listed by the IAA, none of which had a bearing on the appellant’s account regarding the two sexual assaults and rape. Then, at [27] and [28] the IAA found:

Sixthly, in his SHEV statement, the applicant stated that he was held for about four hours, sexually assaulted, and tortured. However, in the SHEV interview, he said he was held for seven to eight hours and indicated that he was not sexually assaulted at this time.

Seventhly, in his SHEV statement, the applicant claimed he was intercepted by the CID again in July 2012, taken to the 64th division SLA camp, held for seven to eight hours, and sexually assaulted. However, in the SHEV interview, he said he was held for around two to four hours at this time.

71    This led to a general finding (at [32]) that the appellant was “not recalling a personal experience in relation to the events of April 2009 and beyond”, which finding appears to include the two claims of sexual assault and the claim of rape. That is a serious finding for a decision-maker to make: namely, that a person who claims to have been raped is, in effect, lying. It is a finding which was made by this decision-maker without having ever seen the appellant, and despite the graphic description given by the appellant about that incident in his statutory declaration dated 24 December 2015, provided in support of his SHEV application.

72    At [35], in a paragraph summarising what the IAA concluded were a number of “inconsistencies and implausibilities” in the appellant’s narrative, the IAA specifically found, about the two incidents relevant to this appeal:

There were also inconsistencies noted in relation to the applicant’s claimed interactions with the CID in 2012, including when he was detained, where he was detained, the time of day he was detained, how long he was detained, who he was detained by, and the nature of the harm inflicted upon him.

73    Then, at [36], the IAA relevantly found:

I also reject the applicant’s claims that he and/or his brothers came to the adverse attention of the SLA or the CID following resettlement to Ottisuttan in February 2012. It follows that I have concerns in relation to the applicant’s associated claims that he was sexually assaulted in 2012. The applicant claimed that he has had medical issues as a result of the treatment he experienced in Sri Lanka and has provided a number of medical and clinical notes from International Health and Medical Services (IHMS) and other providers, dated 2012. On review of the medical evidence it is not apparent what the applicant has been diagnosed with. According to an IHMS ‘Induction Health Assessment’ report of 17 September 2012, the applicant declared that he had never experienced any sexual or physical harm. In taking into account the medical evidence provided and in light of the significant inconsistencies in his evidence as noted above, I do not accept the applicant was a victim of sexual assault as claimed.

74    The medical evidence produced by the appellant was another issue that the delegate had not identified in her reasons as causing her any concern in relation to believing the appellant’s account about the sexual assaults and rape.

75    The summary set out above makes it clear that the inconsistencies identified by the IAA were important in its rejection of the appellant’s narrative about what had happened to him in Sri Lanka in the past, including the rejection of what, on any view, was the serious harm he claimed to have suffered at the hands of Sri Lanka CID officers through sexual assault and rape. Nevertheless, it is also true, as the summary set out by the Federal Circuit Court and quoted in the joint reasons reveals, that the IAA rejected the appellant's claims for protection on several different bases. For the reasons I set out below at [113]-[126], I am nevertheless satisfied that the IAA’s failure to consider whether to exercise the power in s 473DC in relation to the inconsistencies in the appellant’s account of the sexual assaults and rape was capable of affecting the outcome of the IAA review.

RESOLUTION OF THE APPEAL

76    The joint reasons set out the parties’ submissions on the appeal and I need not repeat them. My approach to the resolution of the appeal differs in three points of principle, and in the application of those points of principle to the issue raised for determination in this appeal.

Specific point of agreement with the joint reasons

77    For the sake of completeness, I should indicate that I agree with the observations in the joint reasons about the effect of DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551.

First point of principle: legal unreasonableness and procedural fairness

78    The appellant’s submissions acknowledge a connection or relationship between his legal unreasonableness argument and principles of procedural fairness. That is a correct acknowledgement. I accept there are statements in some authorities, such as DGZ16, to which the joint reasons refer, cautioning against looking at legal unreasonableness through a “natural justice lens”.

79    However, in my respectful opinion, there is an established connection between the concepts of legal unreasonableness and procedural fairness, and the connection is recognised in the judgments in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332. In the context of procedural powers and functions conferred for the purposes of a merits review (whether under Pt 7AA or other merits review schemes), in determining arguments of legal unreasonableness, a supervising Court will also need to bear steadily in mind how procedural fairness obligations attach, or do not attach, to those procedural powers and functions. This is part of the framework of determining what a reasonable decision-maker would do in a particular situation.

80    In Li at [14], French CJ relevantly stated:

The MRT is not excused from compliance with the criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice albeit their content is found in the provisions of the Act and the corresponding regulations and, subject to the Act and those regulations, the common law.

81    That statement applies, with appropriate recognition of the distinct statutory regime in Pt 7AA, to the IAA. Further, at [26], French CJ explained how legal unreasonableness may be characterised as in more than one way susceptible to judicial review, including because of a denial of procedural fairness:

The rationality required by “the rules of reason” is an essential element of lawfulness in decision-making. A decision made for a purpose not authorised by statute, or by reference to considerations irrelevant to the statutory purpose or beyond its scope, or in disregard of mandatory relevant considerations, is beyond power. It falls outside the framework of rationality provided by the statute. To that framework, defined by the subject matter, scope and purpose of the statute conferring the discretion, there may be added specific requirements of a procedural or substantive character. They may be express statutory conditions or, in the case of the requirements of procedural fairness, implied conditions. Vitiating unreasonableness may be characterised in more than one way susceptible of judicial review. A decision affected by actual bias may lead to a discretion being exercised for an improper purpose or by reference to irrelevant considerations. A failure to accord, to a person to be affected by a decision, a reasonable opportunity to be heard may contravene a statutory requirement to accord such a hearing. It may also have the consequence that relevant material which the decision-maker is bound to take into account is not taken into account.

(Footnotes omitted.)

82    In Li at [92], citing Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 and Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36-37, Gageler J said:

Like procedural fairness, to which it is closely linked, reasonableness is not implied as a condition of validity if inconsistent with the terms in which a power or duty is conferred or imposed or if otherwise inconsistent with the nature or statutory context of that power or duty. The common law principle of construction by reference to which reasonableness is implied does not exclude implication of a different or more particular condition of an exercise of a particular statutory discretionary power or of the performance of a particular statutory duty. The principle rather establishes a condition of reasonableness as a default position. Absent an affirmative basis for its exclusion or modification, a condition of reasonableness is presumed.

(Footnotes omitted.)

83    The connection between procedural fairness and reasonableness was further identified by Gageler J in [94] and [99]:

Nothing in Pt 5, or elsewhere in the Act, excludes the implication that the MRT is to act reasonably as a condition of the performance of its overriding duty to review a decision. Nor does anything exclude the implication that the MRT is to act reasonably as a condition of the performance of its procedural duties and of the exercise of its procedural powers.

…

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” 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.

(Footnotes omitted.)

84    Against this background, his Honour relevantly found at [103]:

The MRT fails to comply with a requirement essential to the valid performance of its duty to review a particular decision if it fails to consider the exercise of its power to adjourn that review in circumstances where no reasonable tribunal could fail to do so.

85    Again, within the statutory constraints imposed by the terms of Pt 7AA, these statements are just as applicable to the task of the IAA under that Part.

86    The statutory power in issue in Li, which was said to have been exercised in a legally unreasonable way, was a power to adjourn the Tribunal’s review from time to time. As the plurality recognised (at [60], [74] and [85]), the purpose of this power is to accord fairness in the discharge of the Tribunal’s review function:

The purpose of s 360(1) is not difficult to discern. It is to provide an applicant with the opportunity to present evidence and argument relating to the issues arising in connection with the decision under review.

…

In the present case, regard might be had to the scope and purpose of the power to adjourn in s 363(1)(b), as connected to the purpose of s 360(1).

…

It would not appear that the Tribunal had regard to the purposes for which the statutory discretion in s 363(1)(b) is provided in arriving at its decision.

(Footnotes omitted.)

87    While it is correct that the IAA’s functions are not to be guided, in express terms, by the same kind of exhortatory or aspirational statutory statements as those which guided the Migration Review Tribunal in Li – that is, the requirements to act “according to substantial justice and the merits of the case” (s 353(2)(b)), and to act “in a way that is fair and just” (s 357A(3)) – Pt 7AA still contains, as s 473DA expressly recognises, powers and procedures which are intended to reflect the requirements of the “natural justice hearing rule”.

88    In other words, the whole context in the question whether the exercise of powers and procedures in Pt 7AA has been approached in a way which falls within the bounds of legal reasonableness, is a context of procedural fairness, or “natural justice”, to use the language of Div 3 of Pt 7AA.

89    Just as it was in Li, so it is on this appeal that the particular power in issue (s 473DC) is a power which reflects the IAA’s obligations, such as they are, to afford procedural fairness, or natural justice. In this context, the connection between legal unreasonableness and procedural fairness is, in my respectful opinion, undeniable. Construing powers such as s 473DC as conditioned by the requirement that they be exercised reasonably forms part of the “measure of procedural fairness”, adopting Gageler J’s words from Li, to which review applicants under Pt 7AA are entitled.

90    I accept there may be powers within Pt 7AA that are not as connected to the IAA’s procedural fairness obligations, and that a different analysis of how they are conditioned by the requirement to exercise them reasonably may be undertaken. However, in respect of s 473DC, with which this appeal is concerned, I consider the approach I have set out above is the correct one.

91    In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600, at [21], the plurality made it clear that the various powers conferred on the IAA by Div 3 of Pt 7AA are conferred “on the implied condition that they are to be exercised within the bounds of reasonableness”, in the sense explained in Li, and that an unreasonable failure to exercise one of those powers can “render invalid a purported performance by the Authority of the duty imposed on it by s 473CC to conduct a review and either to affirm or to remit the decision under review”. In other words, this is the same analytical approach as taken in Li.

92    While the plurality in Plaintiff M174 recognised at [22] that the primary requirement for the IAA’s review, as provided in s 473DB, is to carry out that review “by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant”, the plurality also recognised that the primary rule “admits of exceptions”, including the facultative provisions in s 473DC.

93    The plurality also stated at [26]:

In relation to information contained in review material given to the Authority by the Secretary that was before the Minister or delegate at the time of making the decision to refuse to grant the protection visa, s 473DA(2) makes clear that there is no general requirement for the Authority to give that material to the referred applicant. There is, however, nothing in Pt 7AA to preclude the Authority from giving the whole or some part of that material to the applicant or another person in the context of exercising the power conferred by s 473DC(3) to invite the giving of new information, and s 473DA(2) is not addressed to what might be required of the Authority in particular circumstances in order to exercise that power reasonably.

94    This statement applies, for example, to the recording of the SHEV interview between the appellant and the delegate, which was one of the primary materials on which the IAA relied in the appellant’s review to decide that his narrative had too many inconsistencies to be accepted. As the plurality observed in Plaintiff M174, providing such material to an applicant as part of inviting the giving of new information in s 473DC(3) might be needed in particular circumstances in order to exercise that power reasonably. That is because of, in my respectful opinion, the clear link between the procedural fairness purposes of these powers and the concept of what reasonableness requires.

95    The jurisdictional error, if one is identified, may not be described as a denial of procedural fairness, although as the judgments in Li make clear, there may be nothing precluding that characterisation. Rather, the jurisdictional error will be a failure, in the circumstances of a particular review, to observe a condition on a power which is inherently a procedural fairness power – the condition being that it be exercised reasonably, and further, that consideration of its exercise be approached in the way required of a reasonable decision-maker in the same circumstances.

Second point of principle: procedural fairness and materiality

96    As the joint reasons set out, in both Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1 and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, the explanation of the correct approach to determining whether an error is sufficiently material to be characterised as jurisdictional in nature includes statements which suggest that a denial of procedural fairness may not be sufficiently “material” and so may not be properly characterised as a jurisdictional error: see, for example, the plurality in Hossain at [30] and the plurality in SZMTA at [45].

97    In my respectful opinion, earlier authorities in the High Court suggest that breaches of procedural fairness were generally not included in the description of errors for which materiality needs to be shown in order to be jurisdictional in character. For example, in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [58]-[60], Gaudron and Gummow JJ said:

It is one thing to refuse relief on the ground of utility because, as Lord Wilberforce put it, “[t]he court does not act in vain”. For example, the application for an administrative determination may be one which, irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse. Or the prosecutor’s complaint may be the refusal by the decision-maker of an opportunity to make submissions on a point of law which must clearly have been answered unfavourably to the prosecutor. Again, the decision under review may have no legal effect and no continuing legal consequences may flow from it. In such a situation, the reasoning in Ainsworth v Criminal Justice Commission, where the remedy refused was certiorari, indicates that prohibition will not lie.

However, the conditioning of a statutory power so as to require the provision of procedural fairness has, as its basis, a rationale which differs from that which generally underpins the doctrine of excess of power or jurisdiction. The concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures. Unless the limitation ordinarily implied on the statutory power is to be rewritten as denying jurisdictional error for “trivial” breaches of the requirements of procedural fairness, the bearing of the breach upon the ultimate decision should not itself determine whether prohibition under s 75(v) should go. The issue always is whether or not there has been a breach of the obligation to accord procedural fairness and, if so, there will have been jurisdictional error for the purposes of s 75(v).

Cases said to turn upon “trivial” breaches are often better understood on other grounds. In particular, it is trite that, where the obligation to afford procedural fairness exists, its precise or practical content is controlled by any relevant statutory provisions and, within the relevant legislative framework, this will vary according to the circumstances of the particular case. The point is developed in particular in the judgments of Deane J in Kioa v West and Haoucher v Minister for Immigration and Ethnic Affairs.

(Footnotes omitted.)

98    The difference between the approaches in Hossain and Aala, described above, has been noted recently by a Full Court of this Court: see DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10 at [71] (Rangiah J, with whom Reeves and Bromwich JJ agreed).

99    The feature about procedural fairness recognised in Aala (and recognised since, see for example Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 at [16] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ)) is that it is concerned with the process of decision-making and how the functions and powers of a repository are conditioned by the requirements of procedural fairness during that process. In VEAL at [16], the Court relevantly stated:

Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised. They are to be applied to the processes by which a decision will be reached.

(Original emphasis.)

100    Subject to any contrary intention, and always subject to the terms of any particular statutory regime, where a person’s interests are capable of being adversely affected by the exercise of power or performance of a function, the jurisdiction of the repository is conditioned, during the decision-making process, by the obligation to afford procedural fairness, with the content of the obligation to be determined by the particular circumstances (mostly statutory) in which the power is to be exercised or the function performed. That the point at which the constraint on power arises is during the process of decision-making has been recognised time and again by the High Court: see, for example, more recently in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [42] (Kiefel, Bell and Keane JJ), by reference to the decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [25].

101    In WZARH, Gageler and Gordon JJ quoted, at [54], the passage in Aala (at [59]) which I have extracted above. Their Honours continued to state at [55]-[56]:

The concern of procedural fairness, which here operates as a condition of the exercise of a statutory power, is with procedures rather than with outcomes. It follows that a failure on the part of an assessor or reviewer to give the opportunity to be heard which a reasonable assessor or reviewer ought fairly to give in the totality of the circumstances constitutes, without more, a denial of procedural fairness in breach of the implied condition which governs the exercise of the Minister's statutory powers of consideration.

Such a breach of the implied condition which governs the exercise of the Minister's statutory powers of consideration is material, so as to justify the grant of declaratory relief by a court of competent jurisdiction, if it operates to deprive the offshore entry person of “the possibility of a successful outcome”.

(Footnotes omitted.)

102    In my respectful opinion, the principles in Aala, and their continued application in other decisions of the High Court, illustrate that at least with obligations to accord procedural fairness, supervising courts have not identified a breach of such obligations unless satisfied that the conditions which govern the repository’s exercise of power have not been observed. And as conditions on the exercise of power, such obligations are generally seen as intended to affect the jurisdiction of the repository to exercise the power, in the sense explained in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355. If, properly construed, the obligations are not of that character, then there is no breach of procedural fairness.

103    These principles are to be distinguished from the consideration of whether, having established jurisdictional error by way of a denial of procedural fairness, relief should be withheld as a matter of discretion because the denial of procedural fairness could not possibly have made a difference to the outcome: see Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 145. As a Full Court has recently noted, that is a submission that rarely succeeds: see Transport Workers’ Union of Australia v Registered Organisations Commissioner (No 2) [2018] FCAFC 203 at [109], citing Nobarani v Mariconte [2018] HCA 36; 359 ALR 31 at [48].

104    The apparently different approach taken by the majority in Hossain and SZMTA is the subject-matter of the separate reasons of Nettle and Gordon JJ in SZMTA at [81]-[95]. Their Honours’ discussion, and their distinct position from the majority in SZMTA, is not limited to errors involving breaches of procedural fairness.

105    Reasonableness, like procedural fairness, is an implied condition on an exercise of statutory power, in the absence of a contrary intention, as the High Court made clear in Li. That being the case, as with procedural fairness, my understanding of the authorities at least to the point of Hossain and the majority reasons in SZMTA, is that if a supervising court finds that a repository’s exercise of power (or the failure to consider an exercise of power) is legally unreasonable, that is a finding that the repository has breached a condition on the power which affects the jurisdiction of the repository. It may, of course, be a separate issue whether, in an exercise of discretion as to relief, a court should be satisfied that an applicant has not been deprived of the possibility of a successful outcome, or that there is no utility in setting aside the repository’s decision because of other factors.

106    However, as the law currently stands, I do not understand that the ratio of the decisions in Hossain and SZMTA require that where an exercise of power has been found to be legally unreasonable (a ground not addressed in either of those decisions), the supervising court must conduct a separate assessment of “materiality”, before being able to characterise the error as jurisdictional in character.

107    In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408, which did concern legal unreasonableness, while the judgments made it clear that a determination that an exercise of power is legally unreasonable is a conclusion about the repository having exceeded her or his jurisdiction (see [53]-[56] (Gageler J), [80] (Nettle and Gordon JJ), [131] (Edelman J)), there is no mention of the need for an additional requirement of “materiality” before the error can properly be described as jurisdictional. Rather, materiality is bound up in the characterisation of an exercise of power as legally unreasonable.

Third point of principle: how to express the test for legal unreasonableness

108    In the joint reasons, their Honours describe the failure of the IAA to consider exercising the power in s 473DC as “unreasonable or plainly unjust”.

109    I accept that the term “plainly unjust” (or “manifestly unjust”) is used in some of the reasons for judgment in Li (see, for example, at [70], [76] (Hayne, Kiefel and Bell JJ), [110] (Gageler J)) by reference to earlier authorities such as Kruse v Johnson [1898] 2 QB 91 at 99-100, House v The King (1936) 55 CLR 499 at 505, and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at 1178 [68]. It might be said that injustice is generally a consequence of legal unreasonableness. However, moving to the language of “plainly unjust” in the exercise of supervisory jurisdiction, rather than in the context of appellate review of a discretionary judgment, may tend to encourage individual assessments of the desirability of the outcome, a tendency which would not be consistent with a court’s constitutional function, as described by Brennan J in Quin at 35-36.

110    For my own part, and with great respect to those who have a different view, until the law about legal unreasonableness in Australia becomes more developed in its application and in its nuances, I prefer to restrict my articulation of principle to asking whether the exercise of power or performance of a function is such that no decision-maker, acting reasonably, could have approached the exercise of power or performance of the function in that way, in the statutory context and factual circumstances as they were at the relevant time. To my mind, adhering to that kind of approach emphasises, as Gageler J said in Li at [113], the stringency of the test, and the fact that judicial determinations of legal unreasonableness have, in practice, been “rare”. Of course, the descriptor “rare”, in the migration jurisdiction of the Federal Circuit Court, this Court and the High Court, must be applied taking into account the thousands of cases determined each year. In that context, the number of times a legal unreasonableness ground is upheld remains, in my view, “rare”.

111    Justice Gageler repeated observations to this effect in SZVFW at [52], in terms with which I respectfully agree:

Expression of the standard of legal reasonableness in terms of the minimum to be expected of any “reasonable repository of the power” in the circumstances of the impugned decision or action has the benefit of emphasising both the “extremely confined” scope and context-specific operation of the limitation it imposes. That is not to say that the standard might not be appropriately expressed in another form of words.

(Footnotes omitted.)

112    As I have indicated, I have had to reflect carefully on whether the IAA’s failure to consider exercising the s 473DC power in the appellant’s Pt 7AA review properly falls within the applicable principles. With some hesitation, I have decided it does.

Application of the principles of legal unreasonableness

113    The difficult question raised by this appeal is whether, in the particular circumstances of the appellant’s review, and the statutory scheme in Pt 7AA (and especially in Div 3), the only reasonable way to approach a resolution of the apparent inconsistencies identified by the IAA, was for the IAA to at least consider whether it should get further information from the appellant, either in writing or at an interview. The appellant’s contentions in support of this argument are set out in full in the joint reasons.

114    For the reasons that follow, I confine the basis on which I would allow the appeal to the way the IAA dealt with the appellant’s claims of sexual assault and rape.

115    A reasonable decision-maker, having listened to the recording of the interview between the appellant and the delegate, having taken account of the delegate’s remarks during the interview and having regard to her ultimate reasons, would have reflected on whether it was appropriate to interview the appellant, in order to see what it was about the appellant’s account of the sexual assaults and rape that caused the delegate to believe him, and to give less weight to any inconsistencies which arose between how the appellant presented that account at the interview, and the other evidence he had provided.

116    Having reflected on those matters, the IAA may well have decided that it was not appropriate to exercise the power under s 473DC. Provided its reasoning for that decision was rational, it can be accepted that there may have been more than one reasonably open conclusion on whether the s 473DC power should have been exercised. However, in this scenario, and critically to my reasoning, that conclusion would be reached by the IAA after having reflected on the importance of the appellant’s personal and direct narrative, and his demeanour, to the way the delegate approached her fact-finding.

117    I do not consider that the IAA’s approach to inconsistencies in the appellant’s narrative generally, including its identification of inconsistencies in the “PV statement” (the statutory declaration made by the appellant in support of a previous invalid protection visa application) and other evidence given by the appellant where the delegate did not refer to those inconsistencies in her reasons (as noted in the joint reasons), is sufficient to make the IAA’s failure to consider whether to exercise the s 473DC power legally unreasonable. In my respectful opinion, this takes the analysis too close to the circumstances of DGZ16 at [72] where the Full Court held that, in a general sense, Pt 7AA does not require the IAA to notify an applicant that “it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate”, nor provide the appellant with an opportunity to respond to any specific reservations the IAA may have about the appellant’s case.

118    The failure to consider whether to exercise the s 473DC power does not become legally unreasonable by reference to what the delegate said during the interview, nor by reference to any “representations” she might be said to have made to the appellant during the interview process: cf Muin v Refugee Review Tribunal [2002] HCA 30; 68 ALD 257. The appellant, and more particularly his adviser, should have been well aware that the IAA might take a different view of the “PV statement” and other evidence, and put that material to different use. They should have been well aware that the IAA might give different weight to parts of the material, and might place emphasis on variations in the appellant’s narrative which were of no concern to the delegate. This is precisely the kind of difference that arises between two tiers of merits review, and is commonplace.

119    In contrast, the difference between the delegate’s approach to the appellant’s account of the sexual assaults and rape, and the IAA’s approach, is qualitatively different, mostly because of the importance of the appellant’s presentation, his direct account and his demeanour during the interview to the delegate’s conclusions. It was the appellant’s demeanour, and, I infer, the level of his distress when narrating what had happened to him, which led the delegate to disregard some variations in his narrative about these attacks, and to believe the appellant was telling the truth. Assessing the reliability and credibility of a narrative by hearing and observing a person relate her or his account is of significant importance when that person is making a claim in the nature of sexual assault or rape.

120    The IAA, acting reasonably, and aware of the “exceptions” to the primary rule in Div 3 of Pt 7AA, and the ability to obtain new information from a referred applicant, would have appreciated the possible importance of hearing and observing this appellant give his account of the sexual assaults and rape, especially given the effect his narration had had on the conclusions reached by the delegate. The IAA, acting reasonably, would have appreciated that a review on the papers might not give it sufficient understanding of this important aspect of the appellant’s narrative about what had happened to him in Sri Lanka.

121    In particular, the IAA would have appreciated the caution which needs to be exercised before finding variations in a person’s account of a violent and traumatic event to be probative of falsity or a lack of credibility, that caution having been well-established in Australian law as the passages in AVQ15 at [23]-[28] make clear.

122    In those circumstances, the IAA, acting reasonably, even in the context of the limited scheme in Div 3 of Pt 7AA, would have considered whether it was necessary to invite the appellant to an interview. Considering whether to ask the appellant for a written response was not really to the point in these circumstances, and I see nothing legally unreasonable in the IAA not considering whether to take that course. The IAA may have thought it might have been assisted by further written explanations from the appellant, or it may have not: this was within its area of decisional freedom. The real issue was whether this was one of the exceptional situations, expressly contemplated by s 473DC(3), where it might have been necessary to invite the appellant to an interview to understand why the delegate believed his account regarding the sexual assaults and rape.

123    I accept that, as the plurality observed in Fox v Percy [2003] HCA 22; 214 CLR 118 at [30]-[31], demeanour is not the only aspect of a witness’s evidence which may lead to credibility findings. As the plurality stated, such findings might also be made from inferences drawn from “contemporary materials, objectively established facts and the apparent logic of events”. I see that as one of the difficult issues in determining on which side of the line this failure to exercise a power falls. The IAA did refer to some “objective material”, being the contents of the appellant’s medical records, as another reason for not accepting the appellant’s narrative about the sexual assaults and rape. That is why I have noted that the IAA, acting reasonably, upon considering whether to exercise the s 473DC power, may have decided not to take that course.

124    The question is then what tips this case into a category where the IAA’s failure to consider exercising the s 473DC power can properly be described as an “abuse of statutory power” (SZVFW at [80] (Nettle and Gordon JJ)), or a course “that ‘no sensible [Tribunal] acting with due appreciation of its responsibilities’ could have taken” (SZVFW at [69] (Gageler J), citing Li at [71], in turn quoting Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064).

125    Essentially, it is the following factors:

(a)    the subject-matter of the impugned narrative – two sexual assaults and a rape (graphically and specifically described by the appellant), said to have been committed by Sri Lankan State actors (namely, members of the Sri Lanka CID);

(b)    the importance of that narrative to the appellant’s claims for protection, even accepting there may still have been other reasons he might have been found not to satisfy the protection criteria. The appellant’s narrative regarding the sexual assaults and rape was capable of constituting a particularly strong indication that his fear of returning to Sri Lanka might be well-founded, or that there were substantial grounds to believe he was at risk of serious harm if returned to Sri Lanka;

(c)    the well-established importance of observing and hearing an individual recounting such events to the assessment of that individual’s reliability and credibility; and

(d)    the fact the delegate had accepted this narrative on the basis of her impression of the appellant’s presentation and demeanour during the interview, and that the appellant and his advisers had assumed (to the knowledge of the IAA because it was stated in the submissions made on the appellant’s behalf to the IAA that the delegate had accepted that the applicant was “tortured and sexually assaulted by Sri Lankan officials on at least two occasions”), that this aspect of the appellant’s narrative would be treated as accepted by the IAA.

126    A “due appreciation” by the IAA of its responsibilities in determining whether it believed the appellant’s account concerning such a serious issue, in the knowledge it had the power, under s 473DC, to decide to interview him, would have led any IAA acting reasonably to consider whether to exercise that power.

Conclusion

127    I consider the Federal Circuit Court erred in not accepting the appellant’s contention that the IAA’s failure to consider exercising the s 473DC power was, in the circumstances, legally unreasonable.

128    I agree with the orders proposed by Griffiths and Steward JJ, save that I would have preferred an order specifying the remittal of the matter to a differently constituted IAA. The credibility findings of the particular member of the IAA who conducted the appellant’s Pt 7AA review make that an appropriate order in these circumstances.

Associate:

Dated:    15 March 2019