FEDERAL COURT OF AUSTRALIA

CCR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 9

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent is amended to 'Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs'.

2.    The appeal is allowed.

3.    Paragraphs 2 and 3 of the orders of the Federal Circuit Court of Australia made on 19 March 2019 are set aside and in their place it is ordered that:

(a)    The decision of the Immigration Assessment Authority dated 22 March 2018 is set aside.

(b)    The review of the decision of the delegate of the first respondent dated 24 May 2017 is remitted to the Immigration Assessment Authority for determination according to law.

(c)    The first respondent must pay the applicant's costs of the application for judicial review to the Federal Circuit Court, to be assessed if not agreed.

4.    The first respondent must pay the appellant's costs of the appeal, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The appellant is an Afghan national. He applied to the first respondent (the Minister) for a temporary protection visa. A delegate of the Minister refused to grant the visa, and the Immigration Assessment Authority affirmed the delegate's decision. The Federal Circuit Court of Australia dismissed an application for judicial review of the Authority's decision.

2    The appellant appealed from that judgment. He has abandoned one of his two grounds of appeal, so the sole remaining issue is whether the primary judge erred in finding that the Authority did not fall into jurisdictional error when it omitted to get certain country information which the appellant's solicitor had put to it.

How the issue arises in the statutory framework

3    The matter was before the Authority as a fast track review governed by Part 7AA of the Migration Act 1958 (Cth). Section 473DA of the Act provides that Division 3 of Part 7AA, together with two other sections which are not now relevant, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. Section 473DB provides that subject to Part 7AA, the Authority must conduct the review by considering the review material provided to it by the Secretary of the Department under s 473CB, without accepting or requesting new information, and without interviewing the visa applicant.

4    The main qualifications to the general prohibition on the Authority accepting or requesting new information are found in the following provisions of Division 3 of Part 7AA of the Act, which are central to this appeal:

473DC    Getting new information

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

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

(b)    the Authority considers may be relevant.

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

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

(a)    in writing; or

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

473DD    Considering new information in exceptional circumstances

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

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

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

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

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

5    An issue about the interaction between these two provisions, as applied to the present case, resolves this appeal. The issue is whether a determination by the Authority that s 473DD prohibited it from considering the new country information led it erroneously to fail to exercise its discretion whether to get the information under s 473DC(1). In order to understand why that issue is determinative, it is necessary to consider certain aspects of the background to the appeal, as well as how the issue emerged in the course of the appeal.

The appellant's claims about a blood feud

6    The appellant is a Hazara Shia. His family farmed land in his village in Ghazni province. A Pashtun family farmed nearby land. There was a lake between the two farms. A dispute broke out between the appellant's family and the Pashtun family about the use of water in the lake. The appellant claimed that this dispute, and the Pashtun family's links with the Taliban, led members of that family to attack the appellant's family, killing his mother and father, and causing him to flee from Afghanistan.

7    The delegate accepted these claims as genuine. But the appellant's own evidence was that after his departure from Afghanistan, his uncle, and then an acquaintance of the appellant's family, came to occupy the farm without experiencing any problems. The delegate found that the uncle and the appellant's four siblings remained in the village without any harassment from Pashtuns, the Taliban or any other group. The delegate found that claims by the appellant that the Taliban had been examining people at checkpoints to see whether they matched a photograph of the appellant were implausible and far-fetched.

8    Nevertheless, the delegate found that the appellant may face a real chance of harm if he were to return to his home district. Relevantly for this appeal, one of the reasons for that finding was country information suggesting that:

in Pashtun culture blood feuds are long lasting and revenge can take place months, years or even generations after an offence. These motives cannot be entirely discounted among those members of the Taliban to whom the applicant is personally known.

9    The delegate went on, however, to decide that the appellant was not a refugee because he could live in the capital city, Kabul, so that the well-founded fear of persecution did not relate to all areas of Afghanistan. The delegate found that it was reasonable for the appellant to relocate to Kabul, so that the complementary protection criterion in s 36(2)(aa) of the Act for the grant of a visa was not satisfied.

10    The appellant came to be represented by a solicitor after the delegate's decision and before the review decision of the Authority. The solicitor sent a submission to the Authority which referred to country information that had not been before the delegate. It was a report published in February 2014 by the non-governmental organisation, Country of Origin Research and Information (CORI), entitled 'Afghanistan; Blood Feuds'. The submission said that the report indicated that 'blood feuds in Afghanistan can last for a very long time among the tribes in Afghanistan'. The submission included two brief quotes from the report which supported that general statement. It also briefly summarised other points in the report which went to the longevity of blood feuds. It did not attach a copy of the report.

11    In its reasons for decision (at paragraph 4), the Authority dealt with the CORI report in the following terms:

The submission refers to country information: 'CORI Thematic Report Afghanistan; Blood Feuds February 2014'. The report was not before the delegate. It is new information. The report pre-dates the lodgement of the protection visa application, interview and the delegate's decision. The applicant has not satisfied me that the documents could [sic 'could not'] have been provided to the Minister before the delegate made his decision. It has been provided by the applicant's representative in response to the delegate's findings although the matters it addresses were addressed at the protection visa interview. I note that the applicant has engaged a representative to assist with the IAA process; however I am not satisfied that the mere engagement of a representative can be considered exceptional. The report is general country information it is not credible personal information, and I am not satisfied that had this information been known it may have affected the consideration of the applicant's claims by the delegate. Having regard to all the circumstances, I am also not satisfied that there are exceptional circumstances to justify considering this new information.

12    The Authority then went on to say that it had obtained new information published in three updated country information reports which were released (in updated form) after the decision of the delegate. The Authority said it was satisfied that there were exceptional circumstances to justify considering that new information.

13    In its substantive findings, the Authority differed from the delegate in relation to the question of whether the appellant faced a real chance of serious harm if he returned to his home district. The Authority accepted that the appellant's family had a dispute over water with a neighbouring Pashtun family and that the dispute 'became physical'. But while the Authority also accepted that the appellant's mother and father were killed by the Taliban, it did not accept that this happened in the circumstances as claimed by the appellant. Due to inconsistencies and vagueness in the appellant's evidence, the Authority did not accept that the Pashtun family were members of the Taliban or had attacked the appellant's family in the way claimed.

14    The Authority dealt in the following way with the submission of the appellant's solicitor that blood feuds lasted a long time (at paragraph 41):

The representative has contended that the applicant's family members have been able to live and remain in Afghanistan without in [sic] problems because the dispute is a blood feud which [sic] and that such disputes 'last for a very long long time'. I have considered the representative's contentions and the information before the delegate regarding blood feuds however I do not accept there is any plausible basis to the assertions that the dispute is a blood feud. The information indicates that blood feuds by their very nature were more likely to occur within the same ethnic group, are not personalised and that extended families living in the same area including adult males are potentially at risk. To the contrary, on the evidence before me the dispute is between two different ethnic groups and none of the applicant's family members who have remained living in the district of Jaghori including the adult males have experienced any problems. I do not accept the dispute is a blood feud.

15    The Authority concluded that the Pashtun family did not have any continuing enmity towards the appellant or his family and that there was no ongoing personal dispute between the appellant and the Pashtun family. So it concluded that there was no real chance that the appellant's past dispute with that family would reanimate if he were to return to his home village. The Authority went on to find that the appellant would not face a real chance of harm from the Taliban or other anti-government elements if he returned to his home district, and that the risk of discrimination against him on the basis of his ethnicity and religion was remote. The Authority also found against the appellant in relation to other aspects of his claims for both refugee status and complementary protection. It therefore did not consider the question of relocation to Kabul, which was the reason for the delegate refusing the visa.

How the determinative issue emerged in the appeal

16    After the hearing of the appeal my Chambers emailed the parties drawing their attention to EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 and DKF16 v Minister for Immigration and Border Protection [2019] FCA 789. Those cases concern the question of whether a determination by the Authority that s 473DD prohibited it from considering new information could lead to jurisdictional error by reason of a failure to exercise the discretion whether to get the information under s 473DC(1). Those cases were potentially relevant to the arguments the parties had presented at the hearing of the appeal, but had not been cited. So I gave the parties the opportunity to file further written submissions, which they both did.

17    It is not abundantly clear whether the Minister opposed the appellant being permitted to rely on those cases. But in his further written submissions the Minister did refer to EMJ17 in connection with an objection to the appellant running a new ground for the first time on appeal. I will therefore consider when and how the point arising from EMJ17 emerged in these proceedings.

18    The appellant's grounds for seeking judicial review in the Federal Circuit Court included a claim that the Authority's decision was vitiated by an unreasonable failure to get the CORI report. The ground specifically alleged, in the alternative, a misconstruction or misapplication of s 473DC and s 473DD.

19    The primary judge dismissed this ground because the Authority's reasons did not reflect any erroneously narrow understanding of the meaning of 'exceptional circumstances' in s 473DD and it could not be said that the adverse finding under that section lacked an evident and intelligible justification. His Honour also found that there was no basis for a finding that the Authority failed to reasonably exercise its power under s 473DC to get new information, because there was no request for the Authority to do so, and no new issue had arisen that would require it to. He also found that no jurisdictional error arose by reason of the absence of an express consideration as to whether the Authority should exercise its powers under s 473DC.

20    The CORI report was in evidence in the appeal. Counsel for the appellant relied on passages that dealt with a different subject to the passages that were summarised in the appellant's submission to the Authority. The passages on which counsel relied concerned the question of whether blood feuds were likely to occur between members of different ethnic groups, that having been part of the Authority's reasoning as to why it did not accept that the dispute between the appellant's family and the neighbouring Pashtun family was a blood feud. According to the CORI report, one expert, Professor Thomas Barfield, considers that blood feuds usually arise within an ethnic group. But another expert, Dr Noah Coburn, says that blood feuds are more likely to occur between different tribes. An Oxfam report is quoted as saying that the biggest reason for conflict is land disputes, which mainly happen between Pashtuns and Tajiks, and that inequalities and rivalries between different ethnic groups had intensified due to conflict after the Saur Revolution of 1978.

21    The sole ground that the appellant pressed by the time of the hearing of the appeal was that the primary judge erred in not finding the decision of the Authority was vitiated by an unreasonable failure to exercise the power under s 473DC to get new information or to consider whether to exercise that power. This does not articulate the precise point that I have summarised above, as to the interaction between s 473DC and s 473DD. Nevertheless, a misconstruction or misapplication of those sections was raised in the ground of review before the primary judge, who addressed the fact that the Authority did not expressly consider whether to get the CORI report. Also, the point is encompassed by the ground of appeal, because legal unreasonableness can arise, not just where a decision is illogical and lacks an evident and intelligible justification, but also where a more specific jurisdictional error has been identified: see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [28] (French CJ), [72] (Hayne, Kiefel and Bell JJ); Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 372 ALR 424 at [38].

22    At the hearing of the appeal the Minister engaged with the point about the interaction between s 473DC and s 473DD, and did not object to it being raised. The Minister's first set of written submissions touched on it, as they submitted that even if the Authority had exercised the discretion under s 473DC(1), it could not have had regard to the CORI report unless it was satisfied that the requirements of s 473DD had been met. Counsel for the appellant replied to this in his oral submissions, including by submitting that '473DC is not subordinated to 473DD', and that consideration of the discretion under s 473DC and the consideration of the criteria for considering new information under s 473DD(a) 'don't take place at the same time' but rather 'at separate phases'. He submitted that he did not have to establish jurisdictional error in the application of the requirement for exceptional circumstances in s 473DD, because the failure to address the discretion to get the new information meant that any real inquiry about whether there were exceptional circumstances did not occur.

23    Counsel for the Minister submitted that when the Authority has concluded that it is not satisfied that exceptional circumstances exist, so that the precondition for considering the new information under s 473DD(a) has not been satisfied, it would be artificial to say that the Authority should then consider whether to get the information itself. The fact of the finding that there were no exceptional circumstances to justify considering the new information meant that it was not unreasonable for the Authority to omit to consider the exercise of its discretion to get that information, if that was indeed what the Authority did.

24    I am satisfied, on the basis of the manner in which the parties conducted their cases before the primary judge and on appeal, that it is in issue between them whether the Authority's adverse determination under s 473DD, that it could not consider the CORI report, wrongly foreclosed its consideration of the exercise of the discretion to get the report as new information under s 473DC(1). There is no need for the appellant to amend his grounds of appeal in order for that issue to be raised.

25    At this point I should also address another submission the Minister made, that the sole remaining ground of appeal was deficient because it merely replicated the ground of review raised before the primary judge, without identifying any error on his Honour's part. Certainly an approach of that kind is to be deprecated; the authorities make it clear that the first instance hearing is not to be treated as a preliminary skirmish before the appeal, and on appeal it is generally necessary to demonstrate error on the part of the primary judge, rather than simply revisit the decision of the administrative decision-maker again: Rawsthorne v Minister for Immigration and Citizenship [2013] FCAFC 39; (2013) 140 ALD 524 at [27]-[28]. However the ground of appeal here does allege an error on the part of the primary judge, albeit the error of failing to find that the Authority's decision was vitiated as identified in a corresponding ground of review. In the circumstances of this case, where the primary judge's reasons were brief and expressed in general terms, I do not consider that the fact that the ground of appeal fails to identify a more specific error in his Honour's reasoning means that the ground of appeal should not be entertained.

The discretion in s 473DC(1) and the requirements of s 473DD

26    Thawley J's decision in EMJ17 is authority to support the submission that it can be a jurisdictional error to conclude that the absence of 'exceptional circumstances' within the meaning of s 473DD(a) means that the discretion under s 473DC cannot be exercised in favour of getting new information.

27    I can do no better than set out his Honour's reasoning on the point in full ([2018] FCA 1462 at [60], emphasis in original):

The statutory scheme so far as it concerns getting (s 473DC) and considering (s 473DD) 'new information' can, for present purposes, be summarised as follows:

(1)    Section 473DC(1) gives the Authority a discretion to get 'new information' which it considers 'may be relevant' and which was not before the Minister when the s 65 decision was made.

(2)    In considering whether the documents 'may be relevant', the Authority is necessarily engaged in an exercise which is speculative to some degree.

(3)    Section 473DD prevents the Authority from considering any new information unless satisfied that there are 'exceptional circumstances' in accordance with the terms of the provision. The Authority can only consider new information if it has first got it.

(4)    The discretion to get new information under s 473DC(1) does not expressly turn on whether there are 'exceptional circumstances' within the meaning of s 473DD(a). The requirement for there to be 'exceptional circumstances' only arises when the Authority addresses whether it is prevented by s 473DD from considering the 'new information' it has got.

(5)    The nature and content of the 'new information' would ordinarily, or at the least may, be relevant to whether there are 'exceptional circumstances' under s 473DD(a) justifying considering the 'new information' - see, or [sic 'for'] example: Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [59].

(6)    The discretion to get new information under s 473DC(1) is only confined by the terms of the section read in its statutory context, in particular the context of Part 7AA as a whole. That context includes that there is no duty to get information in any circumstance: s 473DC(2).

(7)    The discretion in s 473DC(1) is to be exercised having regard to the particular circumstances of the case. It may well be permissible, having regard to s 473DC(2) and the statutory scheme more generally, to decline to exercise the discretion to get information because the circumstances were not perceived to be sufficiently unusual or exceptional, so long as it was understood that the section did not necessarily require that there be 'exceptional circumstances' within the meaning of s 473DD before the discretion to get new information was exercised.

28    After setting these principles out, his Honour held (at [61]-[63]) that in the case before him the Authority approached the task of whether to get new information under s 473DC on the basis that it was required to be satisfied there were 'exceptional circumstances' within the meaning of s 473DD. That was erroneous because the Authority thought that the discretion in s 473DC(1) was 'confined by a requirement that there exist, at the time of considering whether to exercise the discretion to get new information under s 473DC(1), "exceptional circumstances" within the meaning of s 473DD(a) which would justify the Authority later considering the new information' (see [63]). The error was significant because the question of whether there were 'exceptional circumstances' might be affected by the nature and content of the material which the Authority had not yet got.

29    Moshinsky J followed EMJ17 on this point in DKF16 (and EMJ17 received favourable consideration in EBY17 v Minister for Immigration and Border Protection [2019] FCA 222 at [64] and FKO17 v Minister For Home Affairs [2019] FCA 98 at [52]). The Minister did not submit that Thawley J's reasoning in EMJ17 was incorrect. I consider with respect that it is correct and that I should follow it.

30    The question thus becomes whether the decision of the Authority which is the subject of this appeal displays the erroneous view that the discretion in s 473DC(1) was confined by a requirement that 'exceptional circumstances' within the meaning of s 473DD(a) must exist.

31    There is a potentially significant difference between the facts in each of EMJ17 and DKF16 and the facts of the present appeal. In both of those previous cases, no part of the information that the Authority declined to get had been given to the Authority. In EMJ17 it was information about a protection visa application that the applicant had made in Nauru. In DKF16 it was potential evidence from two individuals who, the applicant said, would corroborate his claims.

32    As a result, the question of whether the Authority should get the new information was squarely before it in both cases. The sentence from the Authority's decision in EMJ17 in which Thawley J identified the error (see EMJ17 at [62]) was: 'I am not satisfied that there are exceptional circumstances to justify the IAA getting new information regarding the applicant's application for protection in Nauru' (emphasis added). The error of requiring s 473DD to be satisfied as a precondition of exercising the discretion to get information in s 473DC is plain on the face of that sentence. Similarly, in DKF16 the Authority said 'I am not satisfied that there are exceptional circumstances which justify obtaining new information from these two people' (see DKF16 at [10], emphasis added).

33    In this appeal, in contrast, the appellant had quoted and summarised selected parts of the CORI report for the Authority, although the report was not provided to it. So, understandably, the quote from paragraph 4 of the Authority's decision which I have set out above is framed in terms of whether the requirements of s 473DD had been satisfied so as to permit the Authority to consider the new information. There is nothing wrong with that approach per se; it is something the Authority is required to do regularly when new information is presented to it.

34    However in the circumstances of this case, I do not consider that the difference I have identified should entail any outcome different from the outcomes in EMJ17 and DKF16. The fact remains that the Authority did not have the CORI report. The Authority only had the existence of the report drawn to its attention, and a brief summary of selected parts of the report provided to it. The title of the report indicated its subject matter. In view of that, the entirety of the report was potentially relevant. The alleged blood feud was important to the appellant's claims. The report was also potentially relevant in view of the basis on which the Authority ended up dealing with that aspect of his claims, where the Authority's approach differed from that of the delegate.

35    So both the preconditions in s 473DC(1) were potentially satisfied: the CORI report was not before the delegate when the delegate made the decision under s 65, and it was open to the Authority to consider that the report may be relevant. The discretion under s 473DC(1) thus arose. The Authority needed to consider whether to get the report. It had no duty to get, request, or accept it: s 473DC(2). But it had the power to do so. If it failed to exercise that power, or to consider exercising it, because of a misunderstanding about whether s 473DD confined the power, that would be a jurisdictional error of the kind identified in EMJ17.

36    It is true that the error of conflating the requirements of s 473DD and the discretion in s 473DC(1) is not as plain on the face of the Authority's decision here as it was in EMJ17 or DKF16. It is also true that the Authority's reasons are not to be read with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. And, as the Minister submitted and the appellant accepted, there was no duty on the Authority to give reasons for any decision not to exercise the discretion under s 473DC(1) in the appellant's favour. So an inference that the omission to mention the discretion means that the Authority overlooked or misunderstood it is less readily made than it might be if there was a duty to give reasons: see BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 373 ALR 196 at [40].

37    Nevertheless, in my view the inference should be made here. Considering paragraph 4 in the context of the Authority's reasons as a whole leads to the conclusion that the Authority went directly to the question of whether the requirements of s 473DD were satisfied, without considering whether it could and should get the CORI report under s 473DC(1). Paragraph 4 contains references to whether the Authority was satisfied 'that the documents could have been provided to the Minister before the delegate made his decision' (cf. s 473DD(b)(i)), whether the report was 'credible personal information' and whether had 'the information been known it could have affected the consideration of the applicant's claims by the delegate' (cf. s 473DD(b)(ii), and whether there were 'exceptional circumstances to justify considering this new information' (cf. s 473DD(a)). Those references show that the Authority's consideration of the CORI report was confined to whether it satisfied the requirements of s 473DD.

38    That this is what the Authority did is readily explicable on the basis that the Authority assumed that it already knew what the report said, so it did not need to get the report, in order to determine whether it could consider it. But that assumption was wrong. I do not accept the Minister's submission that the appellant had given the relevant new information to the Authority or that the Minister already had all the relevant extracts from the report. The information which the appellant now submits was material is not the information that was extracted in his submission to the Authority. It may have been open to the Authority to infer from the fact that the appellant's solicitor had extracted certain parts that they were the only parts that were relevant, so it did not need to get the whole report. But that is not what the Authority did. Rather, as I have described, on the mistaken assumption that it already knew what was in the CORI report, it proceeded straight to a consideration of the requirements of s 473DD without considering whether it should first obtain the report.

39    That approach is not readily explicable by the hypothesis that the Authority considered exercising the discretion under s 473DC(1), discarded the possibility, and did not think it worthy of mention in its reasons. It would be an odd thing for the Authority to explain fully its reasoning in relation to s 473DD without any mention of its reasoning in relation to s 473DC. The better view is that, in fact, the Authority's focus on s 473DD meant that it did not consider s 473DC at all.

40    That approach is at odds with the scheme of s 473DC and s 473DD as explained in EMJ17. In particular, what the Authority overlooked here is that the content of the CORI report, which it did not have, was potentially relevant to the question of whether there were exceptional circumstances to justify considering the report. I accept that the Authority did not mix up the two provisions in its mind. In the paragraph immediately following its rejection of the CORI report in paragraph 4, where it recorded how it had obtained and considered certain updated country information, the Authority appears to be aware of the distinction between those two steps. Nevertheless, the inference that arises from paragraph 4 is that the Authority thought that if it could not consider the CORI report because of s 473DD, there was no need to decide whether to get the report under s 473DC(1). The flaw in that approach, as Thawley J points out in EMJ17, is that the content of new information will often be relevant to whether there are exceptional circumstances justifying the consideration of the information.

41    The Minister also sought to distinguish this case from EMJ17 and DKF16 on the ground that in this case, the appellant did not expressly or impliedly ask the Authority to get the new information. In my view there is such an implied request - citing the report is an invitation to get it, and extracting or summarising isolated passages does not give rise to any implication to the contrary. But in any event s 473DC does not make the discretion to get new information conditional on a request from the referred applicant. Section 473DC(1)(b) conditions the existence of the discretion on whether the Authority considers that the information may be relevant. The Authority can reach that view independently of any request by the applicant. Section 473DC(2) provides that the Authority does not have a duty to get new information whether it is requested to do so by a referred applicant or by any other person or in any other circumstances. That suggests that the discretion can arise irrespective of whether a request has been made or not. More broadly, any view that a lack of any request by an applicant means the discretion does not arise would be inconsistent with the administrative, as opposed to adversarial, nature of the Authority's decision making process, and with the limited participation in that process which Part 7AA affords to an applicant.

42    The Minister's submission that it would be artificial for the Authority, after deciding that it could not consider the new information, to go back to consider whether to get that information, is therefore not to the point. It was a jurisdictional error for the Authority to divert itself from considering the exercise of the discretion at all, because of the view it took about the application of s 473DD, uninformed by knowledge of the full contents of the report.

43    It follows from these findings that it is not possible to read the Authority's decision as having taken the line of reasoning, left open by Thawley J in EMJ17, that the circumstances were not sufficiently unusual or exceptional to justify exercising the discretion in favour of getting the CORI report. The better view is that the Authority's error, as I have described it, means that it did not consider exercising the discretion at all.

44    The Minister submitted that a mere failure to consider the exercise of the power under s 473DC is insufficient per se to give rise to jurisdictional error. The submission relied on DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 366 ALR 665 at [39] (Griffiths and Steward JJ). But the point their Honours were making there was that there had to be something more than just a failure to consider the exercise of the discretion, for example the failure had to have the character of being legally unreasonable: see DPI17 at [38], quoting from CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [51] (Thawley J). Here, for the reasons I have given, the Authority's failure to consider the exercise of the discretion was a result of its view that an adverse finding under s 473DD(a) about excerpts of the report was the end of the matter. So it was a failure that resulted from a misconception of the interaction between s 473DC and s 473DD, meaning it was infected by jurisdictional error.

45    The Minister also submitted that it was significant that the Authority had not accepted the appellant's claims that his parents had been killed in the circumstances he described, which the Minister said were the 'claims giving rise to the apparent blood feud'. This, it was submitted, made it unnecessary for the Authority to consider country information as to blood feuds. But the claim about the blood feud was not dependent on the claims about the circumstances in which the appellant's parents died. Despite rejecting the latter claims, the Authority accepted that the appellant and his family had been involved in a dispute over water with their Pashtun neighbours. What the Authority did not accept was that the dispute was a blood feud, which could still expose the appellant to danger if he returned to his home district approximately 19 years after the dispute arose. The CORI report, while not unequivocal, contained information capable of changing the Authority's finding that the dispute was not a blood feud. That finding was based, in part, on country information to the effect that blood feuds were not likely between members of different ethnic groups, while the CORI report contained information contradicting that view.

46    The Authority's failure to consider getting the CORI report was material in the sense explained in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 363 ALR 599 at [45]. There was a realistic possibility that if the Authority had obtained the CORI Report, it may have accepted that blood feuds do occur between members of different ethnic groups, which could have changed its finding about the existence of a blood feud between the Pashtun family and the appellant. While the Authority found it significant that the appellant's uncle and then a caretaker had lived on the land after the death of the appellant's father, the appellant had made submissions to the effect that in a blood feud, revenge is only taken against the 'offender' and not other kin. So a finding that the enmity between the appellant and the Pashtun family was a blood feud might have changed the Authority's view as to whether that enmity might reanimate on the appellant's return to Afghanistan.

47    Further, the Authority's finding that there were no exceptional circumstances to justify considering the CORI report did not foreclose a realistic possibility that the outcome could have been different if the Authority had obtained the report. The finding of a lack of exceptional circumstances was made with limited knowledge of the parts of the report concerning the issue of whether blood feuds lasted a long time, which in the end merely affirmed part of the delegate's reasoning. Other relevant parts of the report went to the different question, which the Authority but not the delegate thought relevant, of whether blood feuds could take place between members of different ethnic groups. If the Authority knew of those parts of the report, it might have reached a different view on the existence of exceptional circumstances.

48    There was some debate at the hearing of the appeal about the order in which the Authority should approach consideration of such questions as arise under s 473DC and s 473DD. Counsel for the appellant suggested that the Authority would have to consider s 473DD twice, because if it decided that s 473DD(b) prohibited it from considering new information provided by an applicant, it would then have to consider under s 473DC(1) whether it should nevertheless get the information itself, and if it did get the information, it would have to turn again to whether s 473DD(a) prohibited it from considering it. I do not consider that the scheme of s 473DC and s 473DD dictates that the Authority must follow any such elaborate course. What the scheme does require is that in the appropriate circumstances, the Authority must decide whether to get new information. That will be confined by the requirements of s 473DC(1)(a) and s 473DC(1)(b). But it must not be confined by any view that, because the absence of 'exceptional circumstances' within the meaning of s 473DD(a) rules out any consideration of the new information, there is no need to determine whether to get the information.

49    The conclusion that there was a jurisdictional error of that kind means that it is not necessary to consider the appellant's submission that the Authority erred in its application of s 473DD(a), or the Minister's objection to that submission on the basis that it is a new point which was not raised in the grounds of appeal, the written submissions, or before the primary judge. It is also not necessary to consider the appellant's submission that the Authority's decision not to get the CORI report, or not to consider whether to get it, was unreasonable in the sense explained in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475, applying Li.

Orders

50    The appeal will be allowed, albeit on the basis of an authority that was not put to the primary judge. His Honour's decision will be set aside and in its place there will be orders that the decision of the Authority is set aside and that the matter be remitted to the Authority for reconsideration according to law.

Associate:

Dated:    13 January 2020