FEDERAL COURT OF AUSTRALIA

BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs, as agreed or assessed.

REASONS FOR JUDGMENT

THAWLEY J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia (FCCA) delivered on 15 August 2016, dismissing the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (Authority) which, on 13 April 2016, affirmed a decision made by the delegate of the Minister for Immigration and Border Protection to refuse to grant the appellant a Safe Haven Enterprise (subclass 790) Visa (SHEV).

Background

2    The appellant is a Tamil Hindu and a citizen of Sri Lanka. On 25 September 2015, the appellant lodged an application for a SHEV on the basis that he feared being harmed by Sri Lankan authorities because of his young age, his Tamil ethnicity, his origin from the East of the country, his brother’s involvement with the Liberation Tigers of Tamil Eelam (LTTE) and as a failed asylum seeker if he returned from Australia. The delegate refused the appellant’s SHEV application on 4 March 2016.

3    In making her decision, the delegate considered the successful application for a visa which had been made by the appellant’s brother. The delegate referred in her reasons for decision to a number of documents, including the following two (the name of appellant’s brother and his date of birth have been removed):

(1)    “CLD 201522343357 SEF058 – [NAME (Date of birth)] – 2009 RSA application and claims”; and

(2)    “CLD2015 22343537 SEF058 – [NAME] (Date of birth) – XA-866 2010 decision record”.

The Authority

4    The delegate’s decision of 4 March 2016 to refuse the appellant’s application was referred to the Authority for review in accordance with the “Fast track review process in relation to certain protection visa decisions” contained in Pt 7AA of the Migration Act 1958 (Cth) (Act).

5    The Secretary of the Department provided to the Authority “review material”, including the reasons for the primary decision refusing the SHEV, in accordance with s 473CB of the Act. On 4 March 2016, a delegate of the Minister (being a different delegate to the one who made the primary decision) issued a certificate to the Authority under s 473GB(5) (Certificate). The Certificate was said to apply to documents, or information contained in them, titled (the name of appellant’s brother and his date of birth have been removed):

(1)    “SEF058 – [NAME (Date of Birth)] – 2009 RSA application and claims”; and

(2)    “SEF058 – [NAME (Date of Birth)] – XA-866 2010 decision record”.

6    The parties accept that the documents the subject of the Certificate were (or were copies of) documents which were before the primary decision-maker.

7    In accordance with s 473GB(2)(a), the Certificate notified the Authority that s 473GB of the Act applied to certain documents or information contained in them. The Certificate included:

In my [the delegate’s] view, these documents or information should not be disclosed to the referred applicant or the referred applicant’s representative because the disclosure of any matter contained in the document would be contrary to the public interest because the documents were part of the applicant’s brother’s visa applications and not provided by the applicant.

The Immigration Assessment Authority’s use and disclosure of a document or information covered by this certificate is subject to subsections 473GB(3) and 473GB(4) of the Migration Act 1958.

8    The Authority set out its reasons for decision in a written statement dated 13 April 2016. The written statement of reasons summarised the delegate’s decision refusing to grant the visa, referred to the information before the Authority, set out the appellant’s claims for protection and the Authority’s factual findings in relation to the appellant’s claims and set out its reasoning and conclusions, including at [67] and [78], that the appellant did not satisfy the requirements for the grant of a SHEV under ss 36(2)(a) or 36(2)(aa) of the Act.

9    The Authority exercised its power under 473CC(2)(a) to affirm the delegate’s decision.

10    The Authority did not refer in its reasons to its discretionary power under s 473GB(3)(b) to disclose to the referred applicant the documents or information it had been given as part of the “review material” under s 473CB to which the Certificate applied.

The Federal circuit Court

11    On 11 May 2016, the appellant applied to the FCCA for review of the Authority’s decision under s 476 of the Act. That section equates the jurisdiction of the FCCA with the jurisdiction of the High Court of Australia under s 75(v) of the Constitution to issue writs for relief for jurisdictional error: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [46] (Li).

12    Before the FCCA, the appellant relied on grounds set out in an amended application. The primary judge dismissed the application and made an order for costs against the appellant on 15 August 2016.

13    As the ground now pressed by the appellant in this Court was not advanced before the primary judge in written or oral submissions, it is not necessary to set out the primary judge’s reasons for dismissing the application for review.

THE APPEAL

14    The appellant filed a draft amended notice of appeal together with his outline of submissions on 23 February 2018. The draft amended notice of appeal contained a single ground of review, which was not directly raised in the court below. The appellant therefore sought the leave of this Court to rely on that ground: Coulton v Holcombe (1986) 162 CLR 1 at 7-8.

15    The ground of appeal was as follows:

The primary judge erred in failing to find that the Second Respondent (IAA) made a jurisdictional error in that the IAA’s decision was legally unreasonable for reason of its failure to exercise, or alternatively to consider exercising, the discretion in s.473GB(3)(b) of the Migration Act 1958 in relation to documents or information referred to in the Notification regarding the disclosure of certain information covered by section 473GB of the Migration Act 1958 …

16    In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 at [48], Kiefel, Weinberg and Stone JJ said:

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.

17    The Minister did not point to any prejudice but opposed leave being granted on the basis that the ground lacked sufficient merit to warrant granting leave. The appellant noted that the decision of the FCCA was made before a number of decisions of this Court dealing with Part 7AA of the Act. At the Court’s invitation, the parties agreed that the most expedient course in the circumstances of this case was to grant leave if the point had sufficient merit and refuse leave if it did not.

18    Whilst the issues on the appeal revolve primarily around s 473GB, it is necessary to understand the statutory context.

Statutory provisions

19    Part 7AA introduced a “Fast Track Assessment Process” (FTAP) in respect of specified adverse protection visa decisions. The simplified outline of Part 7AA contained in s 473BA explains that the FTAP provides “a limited form of review … of certain decisions to refuse protection visas to some applicants”. It states: “In reviewing fast track reviewable decisions, the Immigration Assessment Authority is required to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review)”.

20    Under the FTAP, the Minister is obliged to refer a fast track reviewable decision to the Authority as soon as reasonably practicable: s 473CA. The Minister must give the Authority certain material, referred to as “review material”, in respect of each referred decision: s 473CB(1). The review material is to include the primary decision, any material provided by the referred applicant to the primary decision-maker and any “other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review”: s 473CB(1).

21    The Authority “must review a fast track reviewable decision” and may affirm the decision or remit it for reconsideration in accordance with such directions or recommendations as are permitted by regulation: s 473CC.

22    Division 3 of Part 7AA is entitled “conduct of review”. It includes, in Subdivision A, an “exhaustive statement of natural justice hearing rule”:

473DA Exhaustive statement of natural justice hearing rule

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

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

23    It has been observed that this provision restricts the first limb of natural justice (the fair hearing rule), but – consistently with the simplified outline of Part 7AA contained in s 473BA – does not purport to affect the second limb (bias): AMA16 v Minister for Immigration and Border Protection [2017] FCAFC 136 at [18].

24    Subdivision B is entitled “Review on the papers”. Under s 473DB(1), the Authority – subject to Part 7AA – is to review the primary decision referred to it on the basis of the “review material” provided to it and without accepting or requesting new information and without interviewing the referred applicant.

25    Subdivision C is entitled “Additional information”. Section 473DC(1) provides a discretion to the Authority, subject to Part 7AA, to get any document or information, called “new information”, which was not before the Minister when the primary decision was made and which the Authority considers relevant. However, the Authority has no duty to get “new information”: s 473DC(2). Section 473DD prevents the Authority from considering “new information” unless there are “exceptional circumstances” and – if the new information was given by a referred applicant – additional matters are satisfied:

473DD     Considering new information in exceptional circumstances

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

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

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

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

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

26    Sections 473DE deals with certain new information which must be given to a referred applicant and contains a requirement, if new information is given to the referred applicant under s 473DE, to invite the referred applicant to give comments on new information in writing or at a hearing.

27    Section 473DF addresses how a referred applicant, invited under s 473DC or 473DE, gives new information or gives comments on new information in writing or at an interview.

28    Division 4 of Part 7AA deals with decisions of the Authority. It is referred to in more detail in these reasons below. Division 5 deals with the exercise of powers and functions of the Authority.

29    Division 6 deals with disclosure of information. Section 473GB provides as follows:

(1)     This section applies to a document or information if:

(a)     the Minister has certified, under subsection (5), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 473GA(1)(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or

(b)     the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.

(2)     If, in compliance with a requirement of or under this Act, the Secretary gives to the Immigration Assessment Authority a document or information to which this section applies, the Secretary:

(a)     must notify the Authority in writing that this section applies in relation to the document or information; and

(b)     may give the Authority any written advice that the Secretary thinks relevant about the significance of the document or information.

(3)     If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:

(a)     may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and

(b)     may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary under subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.

(4)     If the Immigration Assessment Authority discloses any matter to the referred applicant under subsection (3), the Authority must give a direction under section 473GD in relation to the information.

(5)     The Minister may issue a written certificate for the purposes of subsection (1).

30    Documents or information provided to the Authority under s 473GB are not “new information” within the meaning of s 473DC: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [90] to [98], per Kenny, Tracey and Griffiths JJ. It follows that s 473DE, which sets out when certain “new information” must be given to a referred applicant, does not apply to documents or information the subject of a certificate. It also follows, as is expressly recognised by s 473GB(3)(a), that the Authority can consider the document or information the subject of a certificate under s 473GB without being satisfied that there are “exceptional circumstances to justify considering the new information”: s 473DD(a). In any event, the documents and information the subject of the Certificate could not be “new information” because, by reason of s 473DC(1)(a), “new information” can only be information which was not before the Minister when the decision to grant or refuse a visa under s 65 was made. The parties are agreed that the information the subject of the Certificate was before the primary decision-maker when the decision was made.

31    The scheme of Part 7AA is not such as to involve the referred applicant in any consideration of the validity of a s 473GB certificate or whether any written advice given by the Secretary under s 473GB(2)(b) should be accepted or rejected. Indeed, the scheme of Part 7AA is that a referred applicant may never know that a document or information was provided to the Authority with a certificate under s 473GB: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [98].

32    The scheme of Part 7AA is that, except in the limited circumstances identified in Part 7AA, the Authority must review a fast track reviewable decision referred to it (s 473CC(1)) “on the papers” (s 473DB(1)) being the “review material” provided to it (under s 473CB(1)) and conduct that review without “accepting or requesting new information” (s 473DB(1)(a)) or “interviewing the referred applicant” (s 473DB(1)(a)).

Consideration

33    It was common ground that:

(1)    the Authority was given the information referred to in the Certificate by the Secretary of the Department pursuant to the obligation in s 473CB(1)(c);

(2)    the Authority was entitled to have regard to the information referred to in the Certificate: s 473GB(3)(a);

(3)    the Authority took at least some of the information the subject of the Certificate into account in reaching its conclusions;

(4)    the Authority had a discretion to disclose the information to the appellant: s 473GB(3)(b); and

(5)    the statutory power in s 473GB(3)(b) to disclose information or documents to a review applicant is conditioned by a requirement that the power be exercised reasonably: Li at [26] and [89].

34    It was not common ground that a failure to consider the exercise of the discretion under s 473GB(3)(b) might be “legally unreasonable” such that the failure results in the review under s 473CC miscarrying for jurisdictional error. However, the Minister acknowledged that was the effect of Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [82] (CRY16) at [82], a decision in respect of which the Minister has sought special leave to appeal to the High Court.

35    The appellant’s contention is that, in exercising its review function under Part 7AA of the Act, the Authority:

(1)    failed to consider whether to exercise the discretionary power conferred on it by s 473GB(3)(b) to disclose to the appellant the documents and information referred to in the Certificate. The Authority’s failure to consider exercising that discretion, so the contention continues, was unreasonable in the sense described in Li and CRY16 such as to result in the review miscarrying for jurisdictional error;

(2)    did not exercise its discretion in s 473GB(3)(b) to disclose the documents and that failure to exercise its discretion was unreasonable in the sense described in Li.

36    I proceed on the basis that it is possible for circumstances to exist in which it would be “legally unreasonable” to fail to consider, or to refuse to exercise, the discretion to disclose afforded by s 473GB(3)(b).

37    The appellant’s contention requires consideration of three principal issues:

(1)    whether the Authority failed to consider exercising its discretion under s 473GB(3)(b) to disclose to the appellant the documents and information referred to in the Certificate;

(2)    whether such a failure, if established, was legally unreasonable such that the failure constituted jurisdictional error on the part of the Authority; and

(3)    whether, if the Authority did consider exercising the discretion, the failure to exercise it in favour of disclosure was legally unreasonable.

Whether Tribunal failed to consider exercising its discretion under s 473GB(3)(b)

38    Because this ground of appeal was not raised before the FCCA, the primary judge did not consider whether it was to be inferred that the Authority failed to consider exercising the discretion under s 473GB(3)(b).

39    The Authority made no mention of its discretion under s 473GB(3)(b) in its written statement of decision. The appellant’s case was that an inference should be drawn that the Authority did not consider the possibility of exercising the discretion because it did not refer to it in its statement of decision. The appellant submitted that the Authority had to refer to the discretion in its reasons or be faced with the inference that it had not considered the exercise of it.

40    Section 473EA(1) provides:

Written statement of decision

(1)      If the Immigration Assessment Authority makes a decision on a review under this Part, the Authority must make a written statement that:

(a)      sets out the decision of the Authority on the review; and

(b)      sets out the reasons for the decision; and

(c)      records the day and time the statement is made.

41    Section 473EA can be compared with the requirement for the Administrative Appeals Tribunal to provide reasons in respect of a decision under Part 7 of the Act. Section 430(1) provides:

Written statement of decision

(1)      Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:

(a)      sets out the decision of the Tribunal on the review; and

(b)      sets out the reasons for the decision; and

(c)      sets out the findings on any material questions of fact; and

(d)      refers to the evidence or any other material on which the findings of fact were based; and

(e)    …

(f)      records the day and time the statement is made.

42    Whilst s 473EA(1) is in terms narrower than s 430(1), s 25D of the Acts Interpretation Act 1901 (Cth ) provides:

Content of statements of reasons for decisions

Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.

43    It is not necessary for present purposes to determine the scope of the interaction between s 473EA of the Act and s 25D of the Acts Interpretation Act.

44    In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (SZGUR), the High Court considered whether s 430 required the Tribunal to disclose in its written reasons a procedural decision taken in the course of making its decision on a review. In that case, the procedural decision was whether to exercise the power under s 427(1)(d) in aid of a discretion under s 424(1) to “get any information that it considers relevant”. French CJ and Kiefel J (as her Honour then was), with whom Heydon and Crennan JJ agreed, answered that question in the negative at [31] and [32]:

31.    The premise upon which the Federal Court found jurisdictional error on the part of the Tribunal was that the Tribunal overlooked the agent’s request, or did not consider it and had no good reason for not doing so. The premise depended for its correctness upon the content of the Tribunal’s obligation under s 430 to give reasons for its decision. Rares J relied upon a passage from the judgment of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323 at 346 [69]] in which their Honours said that s 430 “entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material”. That, of course, does not mean that a matter not mentioned in the s 430 statement was not considered.

32.    Section 430 presupposes a logical structure to the Tribunal’s reasoning which involves the following steps:

1.     Identification of the relevant evidence or material upon which findings of fact can be based.

2.     Making findings of fact based on the relevant evidence or material.

3.     Reasoning to the decision by application of the relevant legal principles to findings of fact, both primary and inferential.

Section 430 therefore does not require that the Tribunal make reference, in its reasons, to the disposition of a request from an applicant for a medical examination or for any other investigation. The Tribunal’s consideration of whether or not to exercise its power under s 427(1)(d) in aid of its discretion under s 424(1), whether requested or not, to “get any information that it considers relevant”, is neither evidence nor material nor a fact upon which the Tribunal could base any findings or its ultimate decision. The nature of the Tribunal’s treatment of the agent’s letter of 20 June 2008 in its reasons was consistent with that view of what s 430 requires and the logical structure it presupposes.

45    A similar position applies with respect to s 473EA of the Act. That section does not require the Authority to include, in its written statement of the decision on review, reasons in relation to the exercise of its discretion under s 473GB(3)(b).

46    The appellant relied on the principle in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69], that the Court is entitled to infer that any matter not mentioned in the Authority’s reasons was not considered. The appellant submitted, in the terms which follow, that it is appropriate to draw such an inference in the circumstances:

Although the Authority had regard to the documents or information the subject of the Certificate, on a fair reading of the Authority’s reasons for decision the Court would be unable to be satisfied that the Authority gave any consideration as to whether it should exercise its discretion to disclose any matter contained in the information or documents the subject of the Certificate.

47    The onus is on the appellant to establish the relevant factual foundation (on this point in this case, that there was a failure to consider exercising the discretion): VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45], per Hill, Sundberg and Stone JJ. The appellant has the onus of establishing jurisdictional error; it is for the appellant “to establish a basis for drawing the inference necessary to make out the alleged jurisdictional error”: SZGUR at [67], per Gummow J. In SZGUR at [31] in the passage set out above, French CJ and Kiefel J noted the obvious proposition that the fact that something was not mentioned does not necessarily mean that it was not considered.

48    The terms of the Certificate (set out at paragraph 7 above) made reference to the Authority’s discretionary power under s 473GB(3) to disclose the documents and information in question. Further, the Certificate stated it was the Secretary’s view that disclosure would be contrary to the public interest and gave the reasons why that view was held. The Authority did not disclose the documents, although it referred to them and appears to have considered them in reaching its conclusions. I do not infer from the lack of reference to a consideration of the discretion in the written statement of decision that the Authority failed to consider whether or not to exercise the discretion in the course of its review. The appellant has not discharged its onus in this respect.

49    The appellant submitted that to infer that the Authority considered exercising its discretion without including a statement to that effect in its reasons, or not to infer that it did not consider the discretion where there is no reference to it in its reasons, would effectively immunise the Authority from judicial review of the reasonableness of any such failure. The appellant submitted that a statement of decision had to refer to the existence of a discretionary power in Part 7AA or it should be inferred that it was not considered.

50    I do not agree. That is not to say that there might not be particular circumstances in which it is appropriate to draw an inference that a discretionary power was not considered by reason, wholly or partly, of the absence of a reference to the discretion in the reasons. CRY16 may be an example of such a case, albeit dealing with a different discretionary power to that presently being considered. However, first, as I have said at [45] above, s 473EA does not require a statement of decision to refer to a procedural decision taken in the course of a review and, secondly, the statutory scheme is such that a challenge to the failure to exercise, or the exercise of, the discretionary powers in s 473GB are practically limited. As the Full Court noted in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [98]:

As senior counsel for the Minister frankly acknowledged in oral address, this is truly a “remarkable scheme”. That is an accurate characterisation of those parts of the statutory scheme in Pt 7AA which relate to s 473GB certificates and notifications because of the severe limitations imposed upon disclosure to the referred applicant of any such certificate/notification and the related material, no matter how prejudicial or favourable the material may be. Moreover, even though the discretionary powers conferred upon the IAA by s 473GB have to be exercised reasonably in the legal sense, the opportunity for a referred applicant to challenge the exercise or non-exercise of those discretionary powers will in practice be limited because the person normally will have no knowledge or awareness of the existence of the certificate/notification or related information. That will be the case even if the IAA has had regard to such material in conducting its review but has determined, in its discretion, not to disclose the existence of that material or any of its contents.

51    In this particular case, the appellant is able to, and has in fact, challenged the reasonableness of the decision not to exercise the discretion to disclose the documents, assuming the discretion was considered.

52    For the reasons which follow, the appellant has not established legal unreasonableness or jurisdictional error in any failure to consider, or in any exercise of, the discretion if it was considered.

Whether legal unreasonableness established

53    The appellant relied on the decision of the Full Court of this Court in CRY16 as authority for the proposition that, in certain circumstances, a failure by the Authority to consider the exercise of a discretionary power within Division 3 of Part 7AA of the Act might give rise to jurisdictional error on the basis that the failure to consider the discretion is “legally unreasonable”.

54    Assuming that there are circumstances in which it would be legally unreasonable to fail to consider exercising the discretion in s 473GB(3)(b), or to exercise the discretion in favour of not disclosing the documents, the present case is not one of them.

55    CRY16 concerned whether the primary judge erred in finding jurisdictional error on the part of the Authority. The primary judge had concluded that the Authority had acted unreasonably in not considering whether to exercise its statutory powers under Part 7AA of the Act to give the respondent an effective opportunity to address an issue which the Authority found “dispositive”, being the potential for the appellant to relocate within his country of origin. The respondent had submitted that, given the Minister’s delegate had not given any consideration to the issue of relocation, the Authority erred in failing to consider exercising its discretion under s 473DC(1) and (3) to get documents or information on the issue of relocation, including information from the appellant pertaining to his personal circumstances.

56    The Authority’s discretionary power under s 473DC was framed in the following terms:

(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.

57    In CRY16, the Minister submitted that “one relevant effect of s 473DA(1) was that the scope and the criteria for the exercise of the discretionary powers in ss 473DC(1) and (3) were not informed by any underlying obligation to put an affected person on notice of the critical or important issues upon which an administrative decision-maker’s decision may turn, such as would arise under normal principles of procedural fairness”: at [25].

58    While the Court accepted that s 473DA(1) provided an exhaustive statement of the procedural fairness requirements in Pt 7AA, it did not consider that “the procedural fairness perspective exhausts the legal analysis”. The Court said at [67]:

It is also relevant that, as explained by Gageler J in Li at [92], reasonableness is closely linked to procedural fairness. Nevertheless, in light of the terms of s 473DA it is important to consider the present issue through the lens of Div 3 and the principles of legal reasonableness rather than the principles of procedural fairness. In other words, was it legally reasonable in the circumstances of the particular case for the Authority not to consider the exercise of its power to get documents or information?

59    In CRY16, the Minister submitted that, as s 473DC imposed no positive duty on the Authority to consider exercising its discretionary power to get documents or information, legal unreasonableness could only be said to arise in circumstances where the Authority had indeed considered whether to exercise the power, and decided to exercise it in a manner adverse to an affected party: at [31]. The submission was that, given the primary judge’s finding that the Authority had not considered exercising its discretion, no legal unreasonableness could flow from that failure.

60    In rejecting this submission, the Full Court held at [82]-[83]:

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

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

61    CRY16 was a case in which the primary judge had concluded, and the parties did not dispute on appeal, that the Authority had failed to consider exercising the relevant statutory discretion. No such inference or finding exists in the present case, the FCCA not having been asked to consider the issue. As noted above, the appellant has not discharged its onus of establishing that the discretion was not considered. Nevertheless, as noted above, I proceed on the basis that the discretion must also be exercised in a legally unreasonable manner.

62    Another important aspect of CRY16, is that the question of relocation, which was a “dispositive” question, had not been explored by the delegate such that the first time the issue was being examined was by the Authority. At [82], the Full Court explained that failure by the Authority to consider obtaining information on relocation lacked an evident and intelligible justification, because:

    the Authority knew that it did not have information on the referred applicant’s particular circumstances and the impact upon him of relocation to Beirut;

    (the Authority knew that) the referred applicant was likely to have information on his particular circumstances and the impact upon him of relocation to Beirut;

    the Authority did not have that information because the question of relocation was not explored, or the subject of findings, by the delegate;

    the Authority’s failure to consider the exercise of the discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation.

63    As explained below, the documents and information provided to the Authority were not shown on this appeal to have introduced a new issue or something which had not already been considered by the delegate. That is an important distinction between this case and CRY16.

64    In the present case, the delegate had considered the very documents and information (concerning the appellant’s brother’s circumstances) the subject of the certificate. The documents and information did not raise new facts or issues. Nor was it shown that the Authority used the documents or information in a new approach to disposition of the case.

65    The delegate and the Authority reached similar conclusions. Both the delegate and the Authority accepted that the appellant’s brother had some involvement with the LTTE. Both concluded that the appellant did not face a real chance of arrest, detention or harm as a result of any association with his brother. Even if the Authority was considering taking a substantially different view to the delegate, which is not shown to be the case, it was not required to notify the appellant. In DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [72], Reeves, Robertson and Rangiah JJ stated:

Part 7AA contemplates 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.

66    The appellant’s claims which were considered by the delegate included claims concerning his brother’s involvement with the LTTE and his (the appellant’s) fear of harm on account of his brother’s involvement with that organisation. The delegate made the appellant aware it was taking into account the brother’s involvement with the LTTE (see at [69] extracted below). The delegate’s decision included:

39.    I have also verified details of the applicant’s place of origin and family make-up with information contained in department files for the applicant’s brother, [NAME (Date of birth)], CID66226160748. [Footnote: CLF2009/123235 [NAME] – [Date of birth] – SRI LANKA {SRIL} – Male – 66226160748 – Principal Name – SEF058 – XI 36035; ADD2010 429540 SEF058 – [NAME] – Entry Interview a b c] The information in these documents regarding the applicant’s place of origin and family composition is also consistent with information provided by the applicant.

…

69.    It was put to the applicant at the SHEV interview that his claim about his brother being forced to undertake compulsory LTTE training in 2006 for one and a half to two months would be generally accepted.

70.    Country information indicates that in this period, with the resumption of hostilities between the LTE and the Sri Lankan military, the LTTE forcibly recruited young Tamils for training, and required families to provide one person for training. [Footnote: CXBD6A0DE16205: “Tragic phenomenon of forcible recruitment of Tamil civilians by the LTTE”, Daily Mirror (Sri Lanka), 03 October 2015] The information provided is consistent with information contained in the applicant’s brother’s request for protection. [Footnote: CLD 201522343357 SEF058 – [NAME (Date of birth)] – 2009 RSA application and claims; CLD2015 22343537 SEF058 – [NAME] (Date of birth) – XA-866 2010 decision record]

71.    That being said, the applicant has indicated that his brother only undertook training for a short period, before returning home. He has claimed that his parents then sent the applicant’s brother to Malaysia for safety, as the LTTE were demanding a family member join the LTTE permanently. This is consistent with the applicant’s brother’s claims.

72.    The applicant has made no claims that the Sri Lankan authorities were aware of his brother’s short period training with the LTTE in 2006, or that they had shown any interest in the applicant’s brother, apart from some unknown men asking about the applicant and his brother’s whereabouts after the applicant had moved to Saudi Arabia in 2007. I will discuss the claims about the unknown men looking or the applicant further, later in this section.

67    The delegate accepted that the applicant’s brother was forced to undertake one and half to two months training with the LTTE training in 2006. The delegate concluded, however:

141.    … As I have discussed under credibility above I have accepted that an uncle was killed in 1990, another uncle may have been abducted in 2008 and that the applicant’s brother was forced to undertake one and a half to two months of training with the LTTE in 2006. I am not satisfied any of this has created an adverse profile for the applicant. Regarding his brother’s LTTE training in particular, as has already been noted above, such forced training of civilians was common in the period. The applicant stated that after the training in 2006 his brother returned to the family home which was in a government controlled area. There is no information either in the applicant’s claims, or in any other information known to the department, to indicate that the Sri Lankan authorities showed any particular interest in the applicant’s brother after his brother returned home and before he departed Sri Lanka, although I accept that at the time, considering that the Sri Lankan war was nearing iis [sic] end, the applicant’s brother may have lived discretely in Sri Lanka before he again departed. The applicant has also not made any claims that the killing of an uncle in 1990 and the disappearance of another in 2008 has caused any problems for his family from the Sri Lankan authorities.

142.    On the applicant’s return from Saudi Arabia in 2011, his departure in 2011 and his return to Sri Lanka again in 2012 he has no problems with the authorities at the airport. This indicated he had no profile of interest to the authorities at this time. As discussed in the credibility section above, I have rejected his claim that unknown men had come looking for the applicant after his return to Sri Lanka on those occasions.

…

144.    I note the UNHCR guidelines that state that persons with certain links to the LTTE, including family members of LTTE members may be in need of international protection. In this context, I have considered whether that his brother undertook a short amount of LTTE training in 2006 might increase the chance of harm to the applicant on his return to Sri Lanka. Considering the very low level of involvement with the LTTE for his brother, that is a couple of months of forced training, that his brother as [sic] never a LTTE cadre or combatant, the time that has passed since then, and the current situation in Sri Lanka, I find that his familial relationship with his brother would not increase the chance of harm to the applicant if he returned to Sri Lanka in any particular way.

145.    Taking the information and analysis discussed above, I find there is no real chance the applicant would face arbitrary arrest or detention or suffer persecutory harm on account of simply being a Tamil man from the east, from any association with his brother, or for any other reason.

68    It is evident from the Authority’s decision that it had regard to the documents provided under the Certificate. At [3], the Authority stated:

I have had regard to the material referred by the Secretary under s 473CB of the Act. Included in this material was the protection visa (Subclass 866) application including the statement of claims for … the applicant’s brother who came to Australia in 2009 and the Refugee Status Assessment record accepting [the applicant’s brother] as a refugee in Australia.

69    The Authority referred to the appellant’s brother’s application in assessing the appellant’s claims that his brother’s alleged involvement with the LTTE was known to Sri Lankan authorities, the Karuna group and the Tamil Makkal Viduthalai Pulikal (TMVP), and that the appellant has been sought by authorities, the Karuna group and the TMVP due to his connection with his brother. Those paragraphs of the Authority’s decision are set out below:

16.     I accept that [the brother] was required to complete compulsory LTTE training for one – two months in 2006 and that there family was subsequently pressured to provide a permanent LTTE member. I also accept that in trying to protect [the brother], the applicant’s family sent [the brother] to Malaysia to avoid LTTE conscription. The applicant’s evidence has been consistent on this, it is corroborated by [the brother’s] application and is plausible when considered in the situational context of forced recruitment during the war.

17.     I note that [the brother’s] involvement was limited to one – two months compulsory training and that he did not join the LTTE permanently, engage in combat, or perform any other work or ad hoc tasks for them. In the submission to the IAA the applicant’s representative disputed the delegate’s finding that [the brother’s] LTTE involvement was known to authorities. He submitted that the applicant’s SHEV statement indicated that the Karuna group (allied with the government) knew of both brother’s involvement with the LTTE and that the applicant feared reprisal from the Karuna Group because that group knew he and his brother had worked for the LTTE, and that [the brother] was accepted as a refugee.

18.     The applicant’s statement indicates that the army and Karuna group had a heavy presence and started cracking down on people who underwent LTTE training and targeting and killing known LTTE supporters. It does not indicate [the brother] or the applicant was identified and the applicant has not made any subsequent statements to support this.

19.     [The brother’s] statement of claims for protection lodged in 2009 indicates that he had heard that the army received information about people who had been LTTE trained. In 2007 and 2008 three of his friends were kidnapped and five of his neighbours were killed, all of whom were Tamil and most had trained under the LTTE. He claimed that he also feared being targeted and while there is no indication in his statement that his LTTE training was already known to authorities, I accept that he feared they would find out. However [the brother] also stated that he travelled to Colombo to obtain his passport and departed Sri Lanka legally in 2006 on his own passport but that he returned to Sri Lanka in 2008 temporarily, travelling on a false passport.

20.     The refugee assessor accepted it was possible that [the brother’s] associates experienced harm from Sri Lankan security forces who at that time had partial control of Trincomalee district, because they were Tamil and for their imputed political opinion as LTTE supporters. The assessor accepted that in line with UNHCR’s 2009 Eligibility Guidelines, [the brother], as a young Tamil male from an area in the East in which the LTTE had recent partial control, and claiming no pro Government political affiliation, was thus vulnerable. It appears that the assessor relied on the UNHCR guidance in finding that [the brother] would be imputed to have a pro-LTTE opinion by virtue of his profile as a young Tamil male from the East without pro-government political affiliation.

21.     The assessor made no implied or express findings on whether [the brother] had undergone LTTE training [I interpolate that this is incorrect because it made an express finding at [141] of its reasons] or had been personally identified by authorities but found that due to issue identified with his claimed timeline, [the brother] did not return to Sri Lanka in 2008 as claimed.

22.     [The brother’s] ability to obtain a passport from Sri Lankan authorities and depart Sri Lanka without incident indicates the authorities had not identified him and were not interested in targeting him when he departed in 2006. I accept that [the brother] did return to Sri Lanka in 2008 and it is plausible that as a young Tamil male from the Eastern Province entering Sri Lanka at that time, he would not have travelled on his own genuine passport. Nevertheless, there is evidence before me that does not suggest that [the brother] has been personally sought after by the authorities since his 2006 departure. The applicant claims that his family has been questioned by unknown men in relation to [the brother’s] whereabouts, but for the reasons given below, I do not accept that these men were associated with Sri Lankan authorities or other political group, or that they have a continuing interest in [the brother] or the applicant.

23.     I do not accept that [the brother’s] LTTE involvement was ever known to authorities or the Karuna group or that [the brother] has subsequently become of interest to the authorities, the Karuna group or TMVP even after being granted refugee status in Australia in 2009. By extension, I therefore also do not accept that the applicant has been sought after by authorities, the Karuna group or the TMVP for reasons of his connection with [his brother].

70    If the Authority failed to consider exercising its discretion under s 473GB(3)(b), that failure was not legally unreasonable in the sense contemplated by CRY16. Nor was any exercise of the discretion in favour of non-disclosure legally unreasonable.

71    Part 7AA modifies (by restricting) the common law principles of procedural fairness. The analysis of what might be an unreasonable exercise of, or failure to exercise, a discretionary power contained in Part 7AA must proceed against the statutory context, which includes that modification. Whilst the legislature is taken to have intended that a discretionary power will be exercised reasonably (Li at [63], per Hayne, Kiefel and Bell JJ; [88], per Gageler J), that which is reasonable is informed by the subject matter, scope and purpose of the legislation under which it is conferred. Part 7AA requires the Authority to review a decision and to conduct that review on the basis of the “review material” and, subject to the statutory exceptions contained in Part 7AA, without obtaining “new information” or affording the referred applicant a hearing. The reasonableness of an asserted failure to consider a discretionary power to disclose material to the referred applicant, and the reasonableness of the exercise of the discretion itself, must be assessed against that statutory scheme.

72    The documents considered by the Authority the subject of the Certificate were documents which were before the primary decision-maker. If one assumes, for the purposes of argument, that the Authority failed to consider the discretion, the Authority otherwise conducted a review in the way contemplated by Part 7AA: it reviewed the primary decision-maker’s decision on the basis of the material before the primary decision-maker without accepting or requesting new information and without interviewing the referred applicant. This is not a case in which new documents or information were introduced by a s 473GB certificate for the first time on review. This circumstance, certainly in the present case, makes it difficult to argue that a failure to consider the exercise of the discretion “lacks an evident and intelligible justification” in the sense discussed in CRY16 even if the appellant had discharged its onus of establishing such a failure. This circumstance also makes it difficult to argue that any failure to exercise the discretion in favour of disclosure was legally unreasonable.

73    There are further matters which indicate that any failure to consider the discretion, or to exercise the discretion in favour of disclosure, was not “legally unreasonable”. The appellant had addressed his brother’s circumstances with the primary decision-maker (see, for example, the delegate’s reasons at [71], extracted above). It is not established that the documents and information the subject of the Certificate were used to raise a new issue or in furtherance of a new approach in a way that might support an argument that it was legally unreasonable not to consider disclosing the material to the appellant. The Authority accepted the involvement of the appellant’s brother with the LTTE and has not been shown to have used the documents to reject the thrust of the appellant’s claim. Similar to the delegate, the Authority concluded that the appellant’s brother had an association with the LTTE, but that the appellant was unlikely to be sought by authorities as a result of any association with his brother. This conclusion is not shown to be derived solely or predominantly from the documents the subject of the Certificate. The appellant has not shown the documents to be so directly relevant to the way in which the Authority conducted its review and reached its decision that it would have been legally unreasonable for the Authority not to consider disclosing them or to refuse disclosing them. Legal unreasonableness is not lightly to be found: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].

Conclusion

74    I refuse leave to argue the new ground of appeal, with the result that the appeal is dismissed with costs.

Associate:

Dated:    20 March 2018