FEDERAL COURT OF AUSTRALIA

FGC17 v Minister for Home Affairs [2019] FCA 559

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs to be agreed or assessed.

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

REASONS FOR JUDGMENT

STEWARD J:

1    The appellant is an Afghan national of Hazara ethnicity who arrived in Australia in 2013 as an “unauthorised maritime arrival” as defined in the Migration Act 1958 (Cth) (the “Act”). On 22 September 2016, he lodged an application for a Safe Haven Enterprise (subclass 790) visa (“SHEV”) on the basis that he feared persecution if he were to return to Afghanistan. On 30 January 2017, that application was refused by a delegate of the first respondent (the “Minister”). On 3 February 2017, the appellant’s application was then automatically referred under the Act for review by the Immigration Assessment Authority (the “Authority”). On 27 February 2017, the appellant provided written submissions, through his lawyers, to the Authority. On 16 November 2017, the Authority affirmed the delegate’s decision to refuse the application for a SHEV. The appellant sought judicial review of this decision in the Federal Circuit Court of Australia. That application was dismissed on 5 September 2018. This is an appeal from that decision.

Background

2    The appellant’s claims for protection relate to his Hazara ethnicity, his Shia Muslim religion, and his fear that the Taliban would hold him responsible for the arrest of two members of the Taliban by the Afghan government at a hotel managed by his father.

3    The appellant’s claims were described in greater detail by the Authority in the following terms (at [9] of its reasons for decision), which I adopt:

•    He is a Hazara Shi’a Muslim from Heidar, Jaghori district, Ghazni province, Afghanistan.

•    At various [times] he has lived and worked in Iran and Pakistan. In late 2003 he moved with his wife and children to Pakistan because his wife and immediate family did not get along with one another.

•    His father managed a hotel in Janda. From time to time he would return to Afghanistan to help his father with the hotel. Many Taliban members would frequently come to the hotel to eat dinner. Sometime in 2004, the Afghan Government arrested two members of the Taliban at the hotel. Around two or three days later, the Taliban came and took his father from the hotel. They accused his father of helping the Afghan government. They said his father must find the two arrested members or they would hold him responsible for their lives.

•    Before the Taliban took him away his father told the applicant to close the hotel and run away because the Taliban might also arrest him. The applicant closed the hotel and left for Pakistan around two or three days later. He later found out that the Taliban had killed his father.

•    After they killed him the Taliban sent a letter to the family’s mosque in Heidar. The Imam read it to the family - it said the applicant was now responsible for finding the two arrested Taliban men, otherwise he would also be killed.

•    He fears being killed by the Taliban because they believe his father helped the government to arrest two of their members and because after killing his father, they threatened the applicant and declared him responsible for finding the arrested members. They know his name and face and he believes they are still looking for him.

•    The applicant returned to Afghanistan in secret to attend his father’s funeral. Following this, he returned to Afghanistan twice more: once in 2011 to obtain his Taskera and passport and once to fly from Afghanistan to Dubai on his journey to Australia. He feared for his life each time because he believed the Taliban were looking for him.

•    He also fears being abducted and / or killed because he is Hazara Shi’a. He has heard that Hazara Shi’as are frequently attacked outside Heidar which is itself surrounded by Pashtun villages. He has seen many armed Pashtun Taliban members patrolling the streets and his family have told him that the Taliban are active in the area around Heidar.

•    Heidar is a very small village with no work opportunities. He would have to travel outside the village for work.

•    His mother, his wife and their five children all reside together in Pakistan. His two brothers and his sister reside in Afghanistan.

4    Relevantly, the delegate, for the purposes of considering the application for the SHEV, made the following specific findings in favour of the appellant:

I accept that there have been some instances where returnees have been targeted on the road returning to their home district and that if the applicant were to travel outside Kabul there is a risk of him being targeted.

…

I accept that … there is a real risk the applicant will suffer significant harm should he return to Jaghori district in Ghazni province as a consequence of the road insecurity outside of Kabul.

(Emphasis added.)

5    Nevertheless, relying on country information, the delegate concluded that it was safe and reasonable for the appellant to relocate to Kabul on his return to Afghanistan. In that respect, the delegate found:

… the applicant can safely and lawfully access Kabul through its international airport without having to access roads which are reported as being unsafe for returnees. As part of his [protection visa] claims the applicant has expressed no specific political or religious views which I believe would be of any interest to insurgents in Kabul. I am not satisfied that the applicant faces a real chance of persecution upon return to Kabul in the reasonably foreseeable future as a Shia Hazara or a failed asylum seeker from the West.

…

The applicant has demonstrated resilience in travelling and living in Iran, Pakistan and now Australia … Whilst I accept that living conditions in Kabul would not be without difficulties, and he may face challenges in re-establishing himself … I believe he has access to family/tribal connections in the Hazara community in Kabul who could assist him in sourcing accommodation or employment.

In the result, the delegate refused to grant the appellant a SHEV as the delegate was not satisfied that the appellant was a person to whom protection obligations were owed under s 36(2)(a) of the Act; nor was the appellant a person who met the requirements for complementary protection under s 36(2)(aa) of the Act.

The Authority

6    On 6 February 2017, for the purposes of Pt 7AA of the Act, the Authority wrote to the appellant advising that it would proceed to make a decision on his case on the basis of information sent to it by the Department of Immigration and Border Protection (the “Department”), unless it decided to consider new information. Attached to the letter to the appellant was a copy of the “Practice Direction for Applicants, Representatives and Authorised Recipients” (the “Practice Direction”) given under s 473FB of the Act. Relevantly, at [20] of the Practice Direction, the appellant was advised about the nature of any submission to the Authority:

Submissions and new information

20.    For the purposes of the review, you may provide a written submission on the following:

•    why you disagree with the decision of the Department

•    any claim or matter that you presented to the Department that was overlooked.

7    As aforementioned, the appellant provided a written submission to the Authority, which was prepared having regard to the Practice Direction. The appellant did not make submissions that travelled beyond what was prescribed in the Practice Direction; he did not want to risk his submission to the Authority being rejected for non-compliance pursuant to s 473FB(5). At footnote one of the submission, the appellant raised with the Authority his concerns about the “limitation” imposed by the Practice Direction set out above. He explicitly requested that he be put on notice should the Authority decide to consider reversing or changing a finding of the delegate:

The IAA’s acknowledgement of referral letter dated 6 February 2017 informed the Applicant that he could provide a written submission on ‘why [he] disagree[d] with the department’s decision, and any claim or matter [he] presented to the department that was not considered.’ On the basis of this information put to the Applicant by the IAA, it is reasonable for the Applicant to expect that the IAA is not considering reversing or changing any of the Delegate’s findings. If the IAA is considering reversing or changing a finding of the Delegate, the Applicant requests that this information be put to him for comment and / or response.

Otherwise, the appellant’s submission made assertions regarding the safety of Kabul based on the information before the delegate; it did not contain any “new information” within the meaning of s 473DC(1) of the Act.

8    On 16 November 2017, the Authority affirmed the delegate’s decision to refuse to grant the appellant a SHEV, albeit on a different basis from that of the delegate.

9    Owing to the narrow ground of appeal before me, it is unnecessary for me to summarise the decision of the Authority in any great detail. The Authority accepted the appellant’s description of past events to be genuine. It decided, however, that apart from the appellant’s claims that the Taliban had been looking for him, there was no evidence that the Taliban had an adverse interest in the appellant stemming from the accusations against his father or the related threats against the appellant. The Authority considered that while the appellant had some family in Kabul, the appellant would return and stay in Jaghori, where his siblings and other extended family resided. Critically, in assessing whether the appellant met the complementary protection criteria under s 36(2)(aa) of the Act, the Authority found, contrary to the delegate’s finding, that there was:

… no real risk of the [appellant] facing significant harm in his home area Jaghori including the surrounding roads and area when returning to his home area.

10    To support its finding that the security situation in Jaghori had improved, the Authority obtained and considered:

(a)    two new Department of Foreign Affairs and Trade (“DFAT”) country reports; and

(b)    two new United Nations Mission in Afghanistan (“UNAMA”) reports,

relating to Shia, Hazaras and returnees in Afghanistan.

11    The reports were all published in 2017 and therefore post-dated the delegate’s decision. In justifying its consideration of the new country information, the Authority said at [7] of its reasons for decision:

… [The reports] contain updated analysis on risk relevant to these classes of persons which were not available to the delegate. Given the fluidity of the security situation in Afghanistan, I consider it is necessary to give proper consideration to the updated information. I am satisfied that there are exceptional circumstances to justify considering this new information.

12    The Authority did not put the appellant on notice under s 473DE of the Act that it would be considering this “new information”. Nor did the Authority exercise its discretionary power in s 473DC of the Act to invite the appellant to give new information. The Authority acknowledged the request in footnote one of the appellant’s submissions, but decided that it was under no obligation to accede to that request. It said at [5]-[6] of its reasons for decision:

In a footnote within the submission, the applicant’s representative stated: “The IAA’s acknowledgement of referral letter dated 6 February 2017 informed the Applicant that he could provide a written submission on ‘why [he] disagree[d] with the department’s decision, and any claim or matter [he] presented to the department that was not considered.’ On the basis of this information put to the Applicant by the IAA, it is reasonable for the Applicant to expect that the IAA is not considering reversing or changing any of the Delegate’s findings. If the IAA is considering reversing or changing a finding of the Delegate, the Applicant requests that this information be put to him for comment and/ or response.”

I am conducting a fast-track review and under the Act. Section 473DB of the Act provides that subject to the other provisions of Part 7AA, the review is to be conducted on the material provided by the Department without interviewing the applicant and without accepting or requesting new information. There is no right to a hearing. Nor is there any obligation on the IAA to advise if adverse credibility findings are to be made, or any general obligation to otherwise seek comment from an applicant if the view taken by the IAA differs from that of the delegate.

(Emphasis added.)

13    It was this decision of the Authority not to seek comment from the appellant, prior to overturning the delegate’s finding about the risk of travelling to Jaghori, which formed the basis of the appellant’s judicial review application to the Federal Circuit Court.

The Federal Circuit Court

14    By an amended application dated 27 April 2018, the appellant sought judicial review of the Authority’s decision. The appellant relied on one ground of review:

1.    The Immigration Assessment Authority’s (IAA) failure to consider whether to exercise its discretion to seek further information pursuant to section 473DC of the Migration Act 1958 (Cth) was legally unreasonable.

Particulars

a.    The IAA decided the matter by rejecting that the Applicant faced a real risk of significant harm in his home area of Jaghori, which was a different basis than what was relied upon by the delegate (who accepted that the Applicant would face a real risk of significant harm in Jaghori).

15    The appellant was represented in the Federal Circuit Court by Mr Jahnke of Counsel, as he was before me.

16    At [37], the learned primary judge summarised the submissions of counsel for the appellant in the following terms:

a)    prior to the IAA’s review the applicant requested that if the IAA was considering reversing or changing a finding of the delegate, he have this information put to him for comment and/or response;

b)    the IAA obtained new information in the form of the 2017 DFAT and UNAMA reports and relied on that information to conclude that the applicant’s risk of harm on his single return trip to Jaghori (from Kabul) was remote;

c)    neither the new information nor the proposition that the applicant would be safe on his return trip [to] Jaghori was ever put to the applicant;

d)    there is no intelligible justification for the IAA’s failure to consider exercising this power under s.473DC(3) of the Act and the IAA’s explanation that it was not obligated to seek comment from an applicant in circumstances where it took a different view from that of the delegate is insufficient; and

e)    given the factual circumstances of this case, it was unreasonable for the IAA not to exercise its discretionary power under s.473DC of the Act and allow the applicant an opportunity to make further submissions.

17    The appellant further submitted that this case was an example of the error identified in Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 and Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526.

18    The Minister submitted that CRY16 and DZU16 were distinguishable because the factual circumstances, which led the Full Court of this Court in those cases to conclude that it was legally unreasonable for the Authority not to exercise its discretion under s 473DC(3), do not exist in the present case. The Minister submitted instead that the facts of this case mirror those in DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551.

19    I shall return to the above three authorities in greater detail below.

20    The learned primary judge found that the Authority’s failure to exercise its discretionary power was not legally unreasonable in the circumstances. At [73] and [83], his Honour said:

The Court agrees with the respondent’s submissions that DGZ16 is applicable to the facts of this case in a way that both CRY16 and DZU16 are not. Those cases, which criticise the IAA for not exercising its discretion, involve the IAA addressing a new issue that had not been dealt with by the delegate. That is not the case here.

…

In relation to whether the IAA should have allowed the applicant to make further submissions about the new country information or any other issue, within the context of a case where:

a)    there is no authority for the proposition that the IAA cannot come to a different conclusion to that of the delegate;

b)    the IAA assessed the same issues scrutinised by the delegate and one of those issues was the ability to return to Jaghori or relocate to Kabul;

c)    much of the information used by the IAA to inform its findings in relation to the risk of harm faced by the applicant travelling by road to Jaghori from Kabul was already before the delegate and considered by the delegate;

d)    the IAA merely supplemented the information considered by the delegate with the 2017 DFAT and UNAMA reports; and

e)    there is no statutory obligation to seek further comment from an applicant, even if he has specifically asked for such an opportunity,

the Court finds that the IAA was under no obligation to provide the applicant with the 2017 DFAT and UNAMA reports pursuant to [s].473DE(3)(a) of the Act. Further, within the specific facts of this case, where the IAA relied on new information there is no implied requirement, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it has formed specific reservations about the appellant’s case, and to provide the appellant with an opportunity to respond: as per DGZ16 at [74].

21    The learned primary judge held that it was “entirely open to the IAA to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond”. His Honour dismissed the application for review, concluding at [87]:

… the IAA’s exercise failure [sic] its discretionary power, having carefully considered the statutory and factual context before it, was not unreasonable. Rather, it was entirely logical and duly justified. The particular circumstance of this case fall short of engaging any obligation upon the IAA to exercise the power under s.473DC(3) of the Act.

Ground of Appeal

22    The ground of appeal was formulated in a slightly different way to the ground of review pursued below. It was expressed in the following way:

1.    The Federal Circuit Court erred in failing to find that the Immigration Assessment Authority’s failure to exercise its discretion to seek further information pursuant to section 473DC of the Migration Act 1958 (Cth) was legally unreasonable.

23    In his written submissions, however, the appellant framed the alleged error as arising from the Authority’s failure to consider whether to exercise its discretion under s 473DC. Before me, the alleged error was ultimately separated into, and put as, two distinct limbs of contention:

(1)    the Authority erred by unreasonably failing to consider whether to exercise the discretion under s 473DC (the “First Limb of Contention”); or alternatively

(2)    the Authority erred by unreasonably failing to exercise the discretion under s 473DC (the “Second Limb of Contention”).

Relevant legislation

24    Before considering the ground of appeal, the relevant legislative provisions should be set out. Pt 7AA of the Act is relevantly in these terms:

473DC Getting new information

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

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

   (b)    the Authority considers may be relevant.

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

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

   (a)    in writing; or

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

…

473DE Certain new information must be given to referred applicant

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

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

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

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

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

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

    (i)    in writing; or

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

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

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

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

    (b)    is non-disclosable information; or

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

…

473FB Practice directions

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

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

(b)    the conduct of reviews by the Authority.

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

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

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

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

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

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

The Appeal

25    As to the First Limb of Contention, the onus is on the appellant to establish the factual foundation for the conclusion that the Authority failed to consider exercising the discretion under s 473DC of the Act: CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [38] per Thawley J; ASW17 v Minister for Home Affairs [2018] FCA 1815 at [43] per Collier J. The appellant, in his written submissions, contended that the Authority, at [5]-[6] of its reasons for decision (already reproduced above), merely stated that it had been asked to exercise its discretion to put certain information to the appellant and answered this request by stating that it was under no obligation to do so. It followed, it was said, that by treating the lack of an obligation to seek comment from the appellant as determinative, the Authority “disabled” itself from going on to consider whether to exercise its discretionary power in s 473DC. Before me, that submission was only faintly pressed.

26    I respectfully reject the submission that the Authority did not consider whether to exercise the power in s 473DC. Having regard to the Authority’s express acknowledgment of the appellant’s request in [5] and its response to this request in [6], in my view, the better inference to be drawn is that the Authority did consider exercising its discretionary power. To treat the words, “Nor is there … any general obligation to otherwise seek comment from an applicant if the view taken by the IAA differs from that of the delegate”, as merely a recitation of the effect of s 473DC, without denoting an attendant consideration of that power, is, respectfully, untenable. When one reads [5]-[6], there is an indication that the Authority reviewer turned her mind to whether or not to exercise the power in s 473DC, prompted in part or in whole because of the appellant’s request. Consequently, there is no error of law of the kind described in the First Limb of Contention.

27    As to the Second Limb of Contention, it was common ground that the discretionary power in s 473DC, if exercised, should be exercised within the bounds of reasonableness in the sense explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332: see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 92 ALJR 481 at [21] per Gageler, Keane and Nettle JJ, [86] per Gordon J, [97] per Edelman J.

28    Mr Jahnke submitted that in circumstances where the Authority was aware that:

(a)    the delegate had made a finding in the appellant’s favour that it was unsafe for him to return to his home area of Jaghori due to the road insecurity outside of Kabul (the “Positive Finding”);

(b)    the Practice Direction, coupled with the operation of s 473FB(5), “silenced” the appellant from providing further evidence or information in support of the Positive Finding (because the appellant did not disagree with that finding);

(c)    the appellant had explicitly articulated his concern about the constraints imposed by [20] of the Practice Direction and requested an opportunity to comment should the Authority be minded to reverse or change a finding of the delegate; and

(d)    the only manner in which the appellant could provide additional evidence to bolster the delegate’s Positive Finding was through the Authority exercising its discretionary powers in s 473DC(1) and (3),

it was legally unreasonable for the Authority not to exercise the discretionary power in s 473DC to seek further information from the appellant prior to overturning the Positive Finding.

29    I interpolate here that when asked what further information the appellant could furnish in respect of the new country information, supposing the power in s 473DC were exercised, counsel for the appellant was not able to identify with precision what the appellant could have provided. Mr Jahnke contended that, hypothetically, the appellant could have sought and provided country information reports and news articles or, at the very least, “challenged or argued with the credibility of the country information” relied upon by the Authority. I shall return to this submission.

30    The appellant contended that the factual matrix of the present case was novel and, therefore, had not been squarely addressed by the authorities on legal unreasonableness. In the absence of authorities directly on point, the appellant relied on CRY16 and, to a lesser extent, DZU16. In both cases, the Full Court of this Court found that it can be legally unreasonable for the Authority to fail to seek information under s 473DC(3) from the applicant on new issues that had not been dealt with by the delegate and which were ultimately dispositive to the Authority’s decision.

31    In CRY16, the Authority affirmed a delegate’s decision to refuse to grant a visa but on a different basis. The Authority decided that the applicant in that case would not face a real risk of harm if returned to Beirut, as distinct from other areas of Lebanon. However, the question of internal relocation to Beirut was not explored, or the subject of findings, by the delegate. In those circumstances, the Full Court of this Court decided that the Authority had acted legally unreasonably in failing to consider whether the applicant should have been afforded an opportunity to address the issue of relocation to Beirut pursuant to s 473DC. The Court said at [81]-[82]:

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

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.

(Emphasis added.)

32    The appellant conceded that the present case is not on all fours with CRY16. However, he submitted that CRY16 was analogous in the sense that the Authority in that case knew that the applicant was likely to have information about an issue that was dispositive to the review. Here, he submitted, the Authority was similarly in a position to anticipate that the appellant had something to say or would know something about an issue that was dispositive to the review: the safety of travelling/returning to his home area of Jaghori. As such, it was legally unreasonable of the Authority not to have given the appellant an effective opportunity to address the issue of relocation to Jaghori, especially since:

(a)    he was “silenced” from making any submissions on any of the delegate’s positive findings by reason of the Practice Direction;

(b)    the security situation in Afghanistan was “extremely fluid” in the relevant period; and

(c)    a significant amount of time had passed between the decision of the delegate and the Authority’s review (approximately 40 weeks, which is well beyond the six-week estimate given in the Practice Direction).

33    Before me, counsel for the appellant elevated the contention to one of broader application. He contended that every case which involves the Authority overturning a positive finding made by the delegate, on an issue that is dipositive to the review, without first exercising its power in s 473DC to seek further information from the referred applicant would be visited by legal unreasonableness.

34    In contradistinction, Mr Macliver of Counsel, who appeared for the Minister, submitted that CRY16 and DZU16 are not applicable to the immediate facts because those cases involved the Authority addressing a new issue of relocation not dealt with by the delegate. By contrast, here, the relevant issue, namely whether, in assessing complementary protection under s 36(2)(aa), the appellant faced a real risk of significant harm while travelling between Kabul and the Jaghori district, was considered by both the delegate and the Authority.

35    The Minister submitted that the present appeal bears greater similarity to DGZ16. In that case, the Authority affirmed the decision of the delegate to refuse the grant of a visa, but on factual conclusions that differed from those of the delegate. The appellant in that case argued that it was legally unreasonable for the Authority to have failed to exercise its power in s 473DC to invite a response from him, either in writing or at an interview, to address the new findings. This contention was rejected by the Full Court of this Court. Reeves, Robertson and Rangiah JJ relevantly said at [70]-[72] and [74]-[76]:

70    It is to be noted that the present case is not one where the Authority has decided a point which was not the point decided by the delegate, but rather one where additional information is necessary in order to complete the review. We refer to Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475, where the Authority affirmed the decision of the delegate to refuse to grant the SHEV but on the different basis of relocation which the delegate had not addressed. Thus there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s 473DC(3).

71    In the present appeal, in our opinion, the Authority reassessed the material which the delegate had considered. The delegate did not accept the appellant’s claims largely because of the delegate’s finding that there was no [Counter Terrorism Service (“CTS”)] office in Nasiriyah during the period claimed by the appellant, which significantly undermined the credibility of the appellant’s claims to have been a CTS informant. The delegate referred to “the significant credibility issues surrounding the applicant’s claim to have been a ‘secret agent’ for the CTS”. But the delegate also tested the plausibility of the appellant’s claims to have become or remained an informant. The delegate was not satisfied that the risk in which the appellant claimed to have put himself and his family was plausible, in that the delegate did not accept that a reasonable person would continue to be an informant for altruistic reasons after being personally attacked and having his home burnt out.

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.

…

74    We do not accept the submission put on behalf of the appellant that the fact that the Authority in the present case accepted as being before it the submissions made by the appellant, and accepted the new information involved in those submissions, implies that the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it formed specific reservations about the appellant’s case, and to provide the appellant with an opportunity to respond.

75    There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.

76    It was open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond.

36    The appellant sought to distinguish DGZ16. He submitted that in that case the delegate made a “whole raft of negative findings” against the appellant. It was therefore open to the appellant in DGZ16 to challenge any of those negative findings because the relevant Practice Direction did not inhibit him from doing so. The appellant in that case was said to occupy a different position because he could disagree with the negative findings made by the delegate. In other words, he was not precluded by a Practice Direction from making submissions as the appellant was in this case.

37    The Minister did not engage with those distinctions drawn by the appellant. Rather, the Minister emphasised [76] of the Full Court’s decision in DGZ16 in support of the proposition that, in certain factual circumstances, it is open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond. This, he submitted, had direct application here and the position was not altered because the appellant requested an opportunity to comment if the Authority was considering reversing or changing a finding of the delegate. The Minister contended that the issue of relocation to Jaghori was squarely considered by the delegate, and all the Authority did was re-evaluate that very issue based on new country information. The Authority did not transgress the bounds of reasonableness by not exercising the discretion conferred by s 473DC(3) in those circumstances.

38    To fortify that submission, the Minister relied on s 473DE of the Act, particularly s 473DE(3)(a). The Minister submitted that the effect of s 473DE(3)(a) is that the Authority has no obligation to provide new information it has obtained pursuant to s 473DC(1) to a referred applicant if it is not specifically about the referred applicant and is just about a class of persons of which the applicant is a member. This, it was said, is reinforced by s 473DA(1) of the Act which provides that Division 3, together with ss 473GA and 473GB of the Act, “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the [Authority]”. Accordingly, in the Minister’s submission, the Authority was not required to provide the new country information in the 2017 DFAT and UNAMA reports to the appellant, notwithstanding that the new country information was “a part of the reason” for affirming the Authority’s decision. In those circumstances, it could therefore not be said that the Authority acted legally unreasonably in not issuing an invitation to comment to the appellant.

39    In that respect, the Minister also relied upon the decision of Thawley J in CCQ17, even though that case concerned whether there was a failure to consider exercising the power in s 473DC. At [53]-[54], his Honour said:

… Part 7AA restricts the rules of natural justice. It specifically contemplates the use of country information as a reason for affirming a decision without affording an opportunity to the referred applicant to be heard – see: s 473DE, in particular s 473DE(1)(a)(ii) and s 473DE(3)(a). As noted at [47] above, that does not mean there is necessarily no role for s 473DC to play in a particular case. The statutory scheme expressly states that there is no duty to get new information: s 473DC(2).

… assuming there was failure to consider exercising the discretion under s 473DC, such a failure does not have the characteristics of being legally unreasonable. The appellant did not show that the way in which the 2017 DFAT Report (which itself was “new information”) was used by the Authority gave rise to any new issue …

The Minister submitted that two observations made by his Honour were of particular significance to this case and consistent with the Minister’s position: (i) the statutory regime contemplates the use of new country information as a reason for affirming a decision without inviting the referred applicant to comment; and (ii) legal unreasonableness does not arise in circumstances where the Authority’s consideration of the new country information is not in relation to any new issue.

40    Having regard to the above, I respectfully reject the appellant’s Second Limb of Contention that the Authority acted legally unreasonably in not exercising the discretion in s 473DC. In my view, the confluence of the appellant’s request to be heard, the “silencing” effect of the Practice Direction, and the overturning of the delegate’s positive finding did not give rise to an obligation on the part of the Authority to exercise its power. Moreover, the requirement for legal reasonableness is not a vehicle for effectively mandating the exercise of s 473DC in every case which involves the Authority overturning a positive finding made by a delegate on an issue that is dipositive to its review. To adopt such a broad proposition would defeat the statutory goal of efficiency inherent in the fast track review process in Pt 7AA.

41    Here, it cannot be said that the Authority’s decision not to exercise the power was “arbitrary or capricious” or devoid of “an evident and intelligible justification”: see Li at [28] per French CJ, [76] per Hayne, Kiefel and Bell JJ. In this case, the delegate relied on country information to make a finding about the risk of the appellant returning to his home area of Jaghori. The Authority, upon its review, considering an issue that was before the delegate, subsequently obtained updated country information and concluded that it was, at the relevant time, safe for the appellant to return to Jaghori: cf CRY16 and DZU16. This course of conduct is analogous to that described in the passages set out above in DGZ16: the Authority evaluated for itself an issue squarely before the delegate in light of new information. As explained by the Full Court, the concept of legal reasonableness does not oblige the Authority to exercise its power in s 473DC in those circumstances. It is open to the Authority to reassess an issue before the delegate and reach a different conclusion without first inviting the referred applicant to comment, including overturning a positive finding made by the delegate

42    That the Authority in this case independently obtained new country information – as opposed to obtaining new information from the appellant as in DGZ16 – to arrive at its decision does not gainsay the proposition above. In that respect, I find that the language of s 473DE informs the content of the requirements of legal reasonableness in the exercise of s 473DC. By its plain language, s 473DE(3) provides that the Authority may use new information that “is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member” without inviting comment from the referred applicant. In my view, it would ordinarily be at odds with the clear text of the statute to conclude that jurisdictional error lies in the Authority not exercising the power conferred by s 473DC when new country information is used in relation to an issue that was before the delegate. With respect, the circumstances, set out in [28] and [32] above, pressed by the appellant as being “novel” – particularly the “silencing” effect of the Practice Direction – do not justify such a departure from the statutory scheme as laid down by Parliament. Because Pt 7AA provides for a “mechanism of limited review” that is “efficient” and “quick” and because Div 3 of Pt 7AA “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by [the Authority]”, there will inevitably be instances where a referred applicant will feel deprived of an opportunity to be heard. That is just a concomitant of the limited form of review deliberately chosen by Parliament and, without more, does not sound in legal unreasonableness. Having said that, there may be extreme cases where the failure to put new country information to a referred applicant is legally unreasonable, notwithstanding s 473DE(3).

43    At any rate, as adverted to earlier, I am not satisfied that the appellant, had he been given the opportunity to comment on the 2017 DFAT and UNAMA reports, could have said anything of probative value or utility in assessing the risk of harm to him of returning to Jaghori. He has not been in Afghanistan since 2013. There was nothing in evidence before the primary judge of any particular report or document that could have been put to the Authority on the issue of the 2017 DFAT and UNAMA reports’ accuracy. There was no suggestion that the new country information was inaccurate or unreliable. In these circumstances, I am not satisfied that the appellant could have said anything that might have had a material effect on the outcome below: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 at [29]-[31] per Kiefel CJ, Gageler and Keane JJ, [72] per Edelman J.

44    I am, therefore, not satisfied that there was an unreasonable failure by the Authority to exercise its discretion to seek further information from the appellant pursuant to s 473DC. The lack of further inquiry in this case did not result in the Authority’s decision being vitiated by jurisdictional error: see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25].

45    For these reasons, the appeal should be dismissed with costs as agreed or assessed.

Associate:

Dated:    26 April 2019