FEDERAL COURT OF AUSTRALIA

ENJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1079

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

WHITE J

1    The appellant appeals against the dismissal by the Federal Circuit Court (the FCC) of his application for judicial review. The appeal arises out of a second affirmation by the Immigration Assessment Authority (the IAA) of a decision of the Minister’s delegate.

The factual setting

2    The appellant is a national of Sri Lanka of Tamil ethnicity who arrived in Australia on 14 November 2012. He was an “unauthorised maritime arrival” as defined in s 5AA of the Migration Act 1958 (Cth) (the Act).

3    Following the lifting of the bar by Minister for Immigration and Border Protection, the appellant applied on 26 February 2016 for a Safe Haven Enterprise Visa (SHEV). On 8 March 2017, a delegate of the Minister refused that application. As the delegate’s decision was a fast track review decision, it was referred to the IAA on 10 March 2017. On 14 September 2017, the IAA affirmed the delegate’s decision.

4    The appellant then sought judicial review of the IAA decision in the FCC. The Minister conceded the application and, on 24 January 2019, Judge Brown made orders in Chambers by consent as follows:

THE COURT ORDERS BY CONSENT THAT:

1.    A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 14 September 2017.

2.    A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 8 March 2017 according to law.

3.    The first respondent pay the applicant’s costs, fixed in the sum of $3,737.

THE COURT NOTES, BY CONSENT, THAT:

The first respondent accepts that the second respondent failed to consider an integer of the applicant’s claim, namely that he undertook training with the Liberation Tigers of Tamil Eelam (LTTE), and therefore constructively failed to exercise the “review” jurisdiction conferred upon it by section 473CC(1) of the Migration Act 1958 (Cth). The first respondent also accepts that the second respondent made an illogical finding of fact by finding, at paragraph 20 of its decision, that the applicant first raised the claim that he was on a wanted list at his Safe Haven Enterprise visa (SHEV) interview and that this claim was a fabrication, when the applicant raised this claim in his SHEV application form and the accompanying written statement.

5    On 5 February 2019, the IAA sent an email to the appellant at his personal email address informing him that, on 24 January 2019, “a court” had remitted his case back to the IAA for reconsideration and that it would now proceed to that reconsideration. The email went on to inform the appellant (relevantly):

It is important that you:

•    advise us in writing if you wish to appoint a person to receive correspondence on your behalf or act as your representative (to do this, visit www.iaa.gov.au and obtain form F2);

•    act quickly in your dealings with us (as we aim to complete the review within six weeks of the case being remitted to us); and

•    …

(Emphasis added)

6    On 29 January 2019, the appellant applied to the Refugee Advocacy Service of South Australia (RASSA) for migration assistance and, on 11 February 2019, completed the form appointing Mr Chang of RASSA as his authorised representative.

7    Mr Chang sent an email to the IAA at 11.03 am on Wednesday, 13 February 2019. The substance of Mr Chang’s email was as follows:

Dear Sir/Madam

We act for [redacted], who has recently sought RASSA’s assistance with submitting a further response to the IAA. Please find attached a signed Form F2 on behalf of our client.

We note your letter dated 5 February 2019, which informs the review applicant that you aim to finalise his case within six (6) weeks.

Noting that

1.    RASSA has not previously assisted the applicant and requires time to gather information and documents; and

2.    RASSA has limited resources with part-time staff only; and

3.    the review applicant has a history of complex medical issues which make it difficult for him to engage with the legal process;

We ask that you please provide us with the following:

1.    The exact date on which the remittance from the Federal Circuit Court was received by your office; and

2.    A date by which we can provide submissions and additional evidence on behalf of the applicant, without your office first finalising the matter. We ask you to please consider setting this date to be no earlier than four (4) weeks from the date of this email.

Thank you for consideration of our request.

Yours sincerely

8    As is apparent, Mr Chang sought from the IAA, amongst other things, a date by which RASSA could provide submissions and additional evidence on behalf of the appellant, and requested that the IAA allow four weeks for that purpose.

9    The IAA responded to Mr Chang’s email at 3.03 pm on the same day. The substance of its response was as follows:

Dear [Mr] Chang,

As stated in the IAA letter dated 5 February 2019, a court remitted the applicant’s case back to the IAA for reconsideration on 24 January 2019.

We have considered your correspondence of 13 February 2019 requesting additional time to provide submissions and further information.

We have taken into account that the applicant’s case was referred to the IAA on 10 March 2017. Under the Practice Direction for Applicants, Representatives and Authorised Recipients any new information must be given to the IAA within 21 days of the date on which the case was referred to us by the Department. The Direction also states that any submission on why the delegate’s decision may be wrong should be given within that period. The 21 day period ended on 31 March 2017.

We also note that the applicant previously provided a submission on 3 April 2017 that is before the IAA.

Please note that a decision may be made at any time.

Yours sincerely

Immigration Assessment Authority.

10    Mr Chang did not respond to the IAA email. The next event in the chronology was that the IAA member (identified as “S MacKenzie”) made the decision on the review on 22 February 2019. That decision was to affirm the delegate’s decision not to grant the appellant a Protection Visa. Unless otherwise indicated, the references in these reasons to the IAA decision are to be understood as references to the IAA decision of 22 February 2019.

11    The appellant then sought judicial review of the IAA decision in the FCC. His application contained two grounds. The first was that the decision of the IAA to determine the review without providing the appellant an opportunity to provide further submissions and information was legally unreasonable. The second was that the IAA had not determined the review according to law as directed by the FCC on 24 January 2019.

12    The application for judicial review was unsuccessful: ENJ17 v Minister for Home Affairs [2019] FCCA 3462.

13    The appellant now appeals to this Court. His Notice of Appeal contains two grounds, but the appellant did not press the second. The single ground which the appellant did pursue was that the FCC Judge should have found that the IAA decision of 22 February 2019 was affected by jurisdictional error because it had exercised the discretion conferred by s 473FB(5) and/or s 473DC(1) of the Act in a manner which was legally unreasonable and the exercise of the discretion was material to its determination of the review. The particulars to the ground indicate that the exercise of the discretion in question was the decision to make the decision on 22 February 2019 without giving the appellant further time in which to provide evidence and/or submissions.

The IAA reasons concerning the request for time

14    The IAA’s reasons concerning RASSA’s request of 13 February 2019 were as follows:

[11]    On 13 February 2019, the IAA received an email from the applicant’s IAA representative requesting a date by which they could provide ‘submissions and additional evidence’ on behalf of the applicant. A date of no earlier than four weeks from the date of the email was requested. An attached ‘F2’ form indicated that the applicant had engaged the representative on 11 February 2019, about two and a half weeks after the Court’s decision and about one week after the IAA informed the applicant that his case was being reconsidered by the IAA.

[12]    In its response the same day, the IAA informed the representative that a decision would be made at any time. As outlined in the response, the IAA Practice Direction states that submissions should be provided within 21 days of the case being referred to the IAA by the Department (in this case 31 March 2017). The applicant and his former representative have provided submissions and new information previously, which I have considered. There is no indication in the IAA representative’s email as to what additional evidence is being sought and, as noted above, I am satisfied that the applicant has had ample opportunity to present this case. I consider it is reasonable to proceed to make a decision.

15    As is apparent, the IAA member did refer to Mr Chang’s request for further time, stated the member’s satisfaction that the appellant had had “ample opportunity” to present his case, and that the member considered it reasonable to proceed to make a decision. As counsel for the appellant submitted, it is clear that the IAA member determined to proceed to make a decision on the review despite the request in RASSA’s email of 13 February 2019 and despite not having received any further material from the appellant.

16    The Practice Direction to which the IAA email of 13 February 2019 and [12] of the IAA member’s reasons referred was that made by the President of the IAA on 17 December 2018. The Practice Direction provided (relevantly):

[20]    Reviews are generally conducted on the papers provided by the Department and are expected to be completed within six weeks of referral. However you may provide written submissions, and in exceptional circumstances we may consider new information.

…

[22]    Subject to the requirements of the Migration Act, a decision may be made at any time after referral from the Department.

…

[32]    Any new information you give to us that we have not requested of you, must be given to us within 21 days of the date on which your case was referred to us by the Department. Any new information given to us by the Department that has not been requested must also be given to us within 21 days of the referral.

[33]    At our discretion, we may decide not to accept new information that does not comply with these requirements.

(Emphasis added)

17    The Practice Direction went on to specify matters concerning the manner and form in which a written submission or new information should be provided.

18    As counsel for the appellant noted, it is not clear whether the IAA response of 13 February 2019 was authorised by the reviewer, S MacKenzie, or was in the nature of an institutional response by the IAA. There are some indications in the email of 13 February 2019 itself and in the IAA reasons of 22 February 2019 that it may have been the former. However, it does not matter either way as it is apparent that the IAA member relied on the information communicated in the IAA email of 13 February 2019 in concluding that it was reasonable to proceed to make the decision.

19    The IAA accepted that the appellant suffers from a significant congenital health condition. Medical evidence before the IAA indicated that this is a condition affecting the appellant’s blood which has caused irreversible degenerative arthritis, and in turn, significant limitations of the appellant’s mobility and capacity to perform remunerative work. Medical evidence provided in support of the application for judicial review supported the existence and seriousness of these conditions and the appellant’s ongoing receipt of treatment for them. The IAA member also accepted that the appellant had received treatment for his mental health in 2016, but the materials did not indicate the nature of that condition.

Statutory provisions and the applicable principles

20    Part 7AA of the Act provides for “fast track review” of certain refusals of applications for Protection Visas. Section 473CA requires the Minister to refer a “fast track reviewable decision” to the IAA as soon as reasonably practicable after the decision is made. The Secretary must give to the IAA the material specified in s 473CB for the purposes of the review. The IAA is, subject to a limited ability to obtain “new information”, to review the delegate’s decision on the papers.

21    Section 473CC(1) obliges the IAA to review a fast track reviewable decision referred to it. By s 473FA(1), the IAA is required, in the performance of its task, “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)”.

22    Section 473DC provides for the circumstances in which the IAA may “get” new information, that is information which was not before the Minister:

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.

23    Section 473DD confines the circumstances in which the IAA may consider new information:

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.

24    Section 473FB, to which Ground 1 in the appellant’s Notice of Appeal refers, authorises the President of the IAA to issue directions, not inconsistent with the Act or the Regulations, as to the operations of the IAA and as to the conduct of reviews by it. Subsection (3) requires the IAA to comply with the directions “as far as practicable”. It also stipulates that non-compliance with the directions does not mean that the IAA’s decision on a review is invalid.

25    Section 473FB(4) and (5) provides:

(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.

26    It was common ground that s 473DC vests the IAA with a discretion concerning the obtaining of new information, albeit a discretion confined by s 473DD. The power in s 473DC must be exercised reasonably (Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, (2018) 264 CLR 217 at [21], [86] and [97]; Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, (2017) 253 FCR 475 at [67], [72] and [82]-[83]), with the consequence that an unreasonable failure to exercise the power may render invalid the purported performance by the IAA of the duty imposed on it by s 473CC.

27    It was also common ground that the performance by the IAA of its duty under Pt 7AA is conditioned upon it observing the obligations imposed by the Part and by considering, in appropriate cases, whether or not to exercise the discretions conferred on it: DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134 at [43]. The IAA’s exercise of the discretions reposed in it by Pt 7AA is subject to the requirement of legal reasonableness.

28    Whether or not a decision is legally unreasonable is a question which is “fact dependent” and, accordingly, requires an evaluation of the circumstances in the light of the whole of the evidence: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, (2018) 264 CLR 541 at [84]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, (2014) 231 FCR 437 at [48].

The reasons of the FCC Judge

29    In rejecting Ground 1 in the application for judicial review, the FCC Judge said:

[49]    It seems to me that this cannot be said to be any legal unreasonableness in relation to this decision. Whilst it may have been that other people, using a discretion, may have exercised it in a different way in these circumstances, where the remittal was because of the non-engagement with one aspect of the claim, and a finding that was simply not open on the evidence before that particular IAA, there was no requirement for the whole matter to start again.

[50]    The order of the Court was to decide the matter according to law. The material, upon which the Court was ordering the IAA to decide the matter according to law, was material that the IAA already had before it. There was nothing in the Court remittal that mandated that there needed to be more material, or another opportunity, or any other matter to be considered, other than the material that was already before the Court.

[51]    But whilst it may be that some people, another decision-maker in the place of the IAA, may have acceded to the submission that the Applicant made, that does not mean that they were absolutely bound to do so. In the circumstances of this matter, it was open to the IAA to proceed as they did. Because of that, there can be no jurisdictional error with regard to that action. Therefore ground 1 fails.

The appellant’s submissions

30    The appellant’s submissions on the appeal were essentially to the same effect as those made in the FCC, although perhaps made more fully. Counsel submitted that the unreasonableness, in the legal sense, of the refusal to allow the appellant more time in which to provide new information lay in the following combination of circumstances. First, the IAA had not been given, and the member had not requested, any information about the specific nature of the new information or the further submissions which the appellant wished to provide, with the consequence that the IAA member had not known its nature or potential significance. Secondly, the IAA member’s view that the appellant had had “ample opportunity to present his case” was erroneous. Thirdly, the IAA member had applied the Practice Direction and its expectation of completion of reviews within six weeks inflexibly without recognising that the Practice Direction was directed to the paradigm case of a review occurring shortly after the delegate’s decision, and not to reconsiderations following successful applications for judicial review. Fourthly, the IAA member had failed to have regard to the appellant’s health condition, including the statement in the RASSA email of 13 February 2019 that that condition made it “difficult for [the appellant] to engage with the legal process”. Fifthly, the IAA had itself obtained new information, being the most recent Department of Foreign Affairs country report for Sri Lanka dated 23 May 2018, and had concluded that it could consider it pursuant to s 473DD “[g]iven [that] the time that has elapsed since the delegate made her decision” meant that there were exceptional circumstances justifying its consideration.

31    Counsel emphasised that the appellant’s case was not, on the reconsideration, the paradigm case before the IAA. In such a case, the relatively close contemporaneity between the decision of the delegate and the IAA’s review makes it unlikely that there will have been much change in the circumstances of the referred applicant or in the circumstances prevailing in the receiving country. In the appellant’s case, the lapse of nearly two years before the reconsideration gave rise to a greater prospect that there had been changes in the appellant’s circumstances and in the circumstances in Sri Lanka. The IAA’s decision to obtain updated country information was itself a recognition that this was so.

32    In submitting that the IAA member had been in error in concluding that the appellant had had “ample opportunity” to present his case, counsel relied on the following:

(a)    the time which had elapsed since the appellant’s last provision of information to the IAA (on 3 April 2017) was (at least after the first IAA decision of 14 September 2017) attributable to the appellant’s pursuit of judicial review. It was not realistic to suppose that the appellant should have continued to prosecute his case in the IAA until the first IAA decision had been quashed;

(b)    the finding did not take account of the probability that there had been changes in the appellant’s own circumstances and in the circumstances of the receiving country in the period of almost two years in respect of which evidence would need to be gathered. Counsel referred again to the fact that the IAA itself had considered it appropriate to obtain updated country information; and

(c)    the conclusion that the appellant had had “ample opportunity” placed heavy reliance on the terms of the Practice Direction, in particular the 21 day limit for the provision of new information imposed by cl 32.

33    Counsel noted that the IAA had not referred to the particular matters on which RASSA had relied in its email of 13 February 2019 in seeking further time. He submitted that the absence of such a reference allowed the inference that the IAA had not considered those matters as material to its decision to proceed in the way that it did or, at least, that it regarded its conclusion as so outweighing the considerations identified by RASSA that those matters were not worthy of mention.

34    Counsel also emphasised that the IAA had not, in its consideration of whether to defer making its decision, referred to the appellant’s health condition and, in particular, to the statement in the RASSA email that the condition had made it difficult for the appellant to engage in the legal process. Counsel noted in this respect that the IAA had later referred to the appellant’s health condition and that the member had accepted that it was possible that the appellant was still undergoing treatment for that condition.

35    Counsel submitted that there had been no pressing need for the IAA to make the decision on 22 February 2019. At that time, only 29 days had elapsed since the order of the FCC of 24 January 2019 and, even if the aspiration of a decision within six weeks was taken as the benchmark, a period of one day less than two weeks still remained.

36    Next, counsel referred to two decisions. The first was CAK19 v Minister for Home Affairs [2020] FCCA 1251, which has some similarities with the present case. In CAK19, two previous affirmations by the IAA of the delegate’s refusal of a Protection Visa had been quashed on judicial review. The judicial review of the second IAA decision concluded (by consent orders) on 1 March 2019 and the third IAA decision was made 53 days later, on 23 April 2019. The first ground of CAK19’s application for judicial review was that the IAA’s failure to refrain from making its decision until he had provided a mental health report had been legally unreasonable. Judge Riethmuller upheld that ground, saying:

[24]    The conduct of the IAA in this regard was legally unreasonable. It lacks any intelligible justification. No reasonable decision maker would deny a person a further 11 days, after delays of over 960 days, when they are seeking to provide an expert report which has already been arranged, addressing a central issue in the proceedings, even in the context of the strictures of ss.473DC and 473DD.

37    The second authority was Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332. In that case, the former Migration Review Tribunal (MRT), in conducting its review pursuant to Div 5 of Pt 5 of the Act, refused to withhold the making of its decision until the applicant’s application for a skills assessment, on which the grant of the visa depended, had been finalised. Section 363(1)(a) vested the MRT with a discretion to “adjourn the review from time to time”. It was held that the MRT’s decision to refuse the adjournment was unreasonable and had resulted in jurisdictional error.

38    French CJ said:

[31]    The decision of the MRT to proceed to its determination was not, on the face of it, informed by any consideration other than the asserted sufficiency of the opportunities provided to the first respondent to put her case. The MRT did not in terms or by implication accept or reject the substance of the reasons for a deferment put to it by the first respondent's migration agent. It did not suggest that the first respondent's request for a deferment was due to any fault on her part or on the part of her migration agent. It did not suggest that its decision was based on any balancing of the legislative objectives set out in s 353. Its decision was fatal to the first respondent's application. There was in the circumstances, including the already long history of the matter, an arbitrariness about the decision, which rendered it unreasonable in the limiting sense explained above.

39    The plurality (Hayne, Kiefel and Bell JJ) reasoned as follows:

[80]    The decision to refuse the adjournment request was explained by the Tribunal on the bases that: (a) Ms Li had been provided with enough opportunities to present her case; and (b) the Tribunal was not prepared to delay the matter any further. The reference to delay was not further explained by the Tribunal. The only significant delay would appear to be attributable to the Tribunal, which took some nine months to contact Ms Li after the lodgement of her application. In any event, what pressing need for a conclusion of the review was the Tribunal adverting to, a need which would have to be weighed against the object of s 360? The position of the Tribunal cannot be equated with that of a party to litigation who may be prejudiced by the delay of another. It may be accepted that the Tribunal is to act with some efficiency, as is stated in s 353(1) of the Migration Act, but such a consideration would again have to be weighed against the countervailing consideration of the purpose of s 360 and Div 5.

…

[85]    The Tribunal's error might be identified as giving too much weight to the fact that Ms Li had had some opportunity to present evidence and argument and insufficient weight to her need to present further evidence. It would not appear that the Tribunal had regard to the purposes for which the statutory discretion in s 363(1)(b) is provided in arriving at its decision. It is not possible to say which of these errors was made, but the result itself bespeaks error. In the circumstances of this case, it could not have been decided that the review should be brought to an end if all relevant and no irrelevant considerations were taken into account and regard was had to the scope and purpose of the statute. Because error must be inferred, it follows that the Tribunal did not discharge its function (of deciding whether to adjourn the review) according to law. The Tribunal did not conduct the review in the manner required by the Migration Act and consequently acted beyond its jurisdiction.

(Citations omitted)

40    Gageler J, in his separate reasons, concluded:

[123]    The Minister argues that Ms Li was "entitled to expect a decision according to law, but not further indulgence in putting off the day of reckoning". Ms Li was certainly entitled to expect a decision according to law. She was also entitled to expect a decision according to reason. She was entitled to expect the MRT to be reasonable.

[124]    No reasonable tribunal, seeking to act in a way that is fair and just, and according to substantial justice and the merits of the case, would have refused the adjournment.

41    Counsel also referred to the different ways in which legal unreasonableness may be manifest in a decision and that different aspects may “run into one another”: Li at [72]. In the passage which immediately follows, the plurality in Li said:

[I]n Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is "manifestly unreasonable". Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.

(Citation omitted and emphasis added)

42    Later, in [74], the plurality noted that “an obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached”.

Consideration

43    It convenient to consider first the appellant’s submissions concerning the reasons of the FCC Judge. The appellant contended that the Judge had been in error in stating in [49] that “there was no requirement for the whole matter to start again”. That was an error, it was submitted, because the IAA had been required to make a fresh decision according to law.

44    Next, it was submitted that the FCC Judge had been wrong in [50] in stating that “[t]he material, upon which the Court was ordering the IAA to decide the matter according to law, was material that the IAA had before it”. That was an error, it was said, because Judge Brown had not specified the material on which the IAA was to make its decision. His Honour had simply quashed the first decision of the IAA and ordered that the decision be made according to law, without making any order with respect to the material upon which the decision was to be made.

45    Next, counsel submitted that the Judge’s statement in [50] that “[t]here was nothing in the Court remittal that mandated that there needed to be more material, or another opportunity, or any other matter to be considered, other than the material that was already before the Court”, was an error. That was an error because the IAA was not confined to the material which had been before the FCC on judicial review.

46    There is some evident awkwardness in the manner of expression of the FCC Judge in this part of his reasons. Nevertheless, I am not willing to accept that the Judge made the first error which the appellant’s submissions attribute to him. On my understanding, the Judge was indicating only that it was not necessary for the IAA to start all over again as though there was no material already before it. Instead, it could have regard to the material previously referred to it by the Secretary and, subject to s 473DD, material provided by the appellant.

47    The Judge’s statement in [50] does, however, seem to imply that Judge Brown had, on 24 January 2019, ordered the IAA to decide the matter on the material before it. It is plain that Judge Brown’s order cannot reasonably be understood to that effect. To that extent, there is error in the FCC Judge’s decision. Further, the Judge’s statement in [50] seems to reflect an understanding that the IAA member was not required to give the appellant an opportunity to provide new information because there had been nothing in the order of Judge Brown requiring it to do so. If that be a correct understanding of his Honour’s reasons, then it was in error.

48    For these reasons, and because this Court is required to do so in any event, I will review the appellant’s claims of legal unreasonableness afresh.

49    As already noted, the Notice of Appeal identified the discretion said to have been exercised unreasonably as that contained in s 473FB(5) or s 473DC(1), or both. Neither provision seems particularly apt in relation to the complaint made by the appellant, namely, that it had been unreasonable of the IAA to decide to make its decision at the time that it did and thereby to have denied him more time in which to prepare a submission and to provide new information. Counsel did not seem really to press s 473FB(5) as a source of the discretion.

50    Section 473DC(1) concerns the discretion in the IAA to “get” new information. Its scope is indicated by Div 3 in Pt 7AA considered as a whole. The Division is concerned with the material on which the IAA review is to proceed. That material and information may be of four general kinds: the review material “provided” by the Secretary (s 473DB(1)); material which the IAA itself “gets” (s 473DC(1)); material “given” to the IAA without invitation (s 473DD); and material “given” to the IAA by “a person” or the referred applicant in response to an invitation from the IAA (s 473DC(3) and ss 473DE and 473DF). The information and submissions foreshadowed by RASSA in its email of 13 February 2019 seems to have been material of the third kind. Accordingly, s 473DC was not engaged.

51    In the oral submissions, counsel referred two alternative sources of the discretion: s 473CC(2) (which sets out the decisions available to the IAA on the review) and to a discretion necessarily implicit in Pt 7AA which allows the IAA to determine when to deliver its decisions.

52    On reflection, I am inclined to the view that the discretion in the IAA to determine when to make its decision is located in s 473DB(2). It provides that, subject to Pt 7AA, the IAA may make a decision on a fast track reviewable decision “at any time after the decision has been referred to [it]”. That is an express source of the discretion in the IAA to determine the time at which the decision on a review will be made.

53    Under common law principles, the IAA would be required to give the appellant a reasonable opportunity to present evidence and make submissions in support of his claims. Section 473DA of the Act modifies the common law position by stating that Div 3 of the Act, together with ss 473GA and 473GB, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in reviews by the IAA. That means, as counsel for the Minister submitted, that the issue of legal unreasonableness in the present context is not to be reviewed through a natural justice lens: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 at [73]. However, as the reasons of Mortimer J in DPI17 at [78]-[95] indicate, this does not mean that the underlying principles of natural justice may not inform the evaluation of reasonableness in a given case.

54    This was confirmed by the High Court in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 373 ALR 196:

[33]    … What [s 473DA(1)] does preclude is an incident of the Authority's obligation of procedural fairness arising as a matter of implication through the application of the common law principle of statutory interpretation according to which, where the exercise of a power or the performance of a duty is conditioned by a requirement to afford procedural fairness, "regard must be had to the circumstances of the particular case to ascertain what is needed to satisfy the condition" with the result that "[i]t is not possible precisely and exhaustively to state what the repository of a statutory power must always do to satisfy [the] condition".

[34]    The consequence of the codifying effect of s 473DA(1) was correctly stated by the Full Court of the Federal Court constituted by Robertson, Murphy and Kerr JJ in Minister for Immigration and Border Protection v CRY16 and in Minister for Immigration and Border Protection v DZU16. The consequence is that, except to the extent that procedural unfairness overlaps with legal unreasonableness, procedural fairness analysis is not the "lens" through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined.

(Emphasis added and citations omitted)

55    The passage in CRY16 which was approved in BVD17 is:

[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? Thus although we accept the Minister’s submission that the respondent had no inkling, and no way of having an inkling, that the Authority was going to accept the case he had put to the delegate but then decide against him on a different basis, we do not consider that the procedural fairness perspective exhausts the legal analysis. Further, in our opinion, that the outcome is unfair “in an ordinary sense”, as accepted by Senior Counsel for the Minister, is not irrelevant to whether or not there has been legal unreasonableness in the exercise or non-exercise of statutory powers.

56    And the passage in Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526 which was approved in BVD17 includes:

[99]    In our opinion, there is no scope for the principles of procedural fairness to apply to a review by the Authority where Pt 7AA is followed, except to the extent that those principles overlap with legal unreasonableness. A procedural fairness analysis is not the correct perspective …

(Emphasis added and citation omitted)

57    It follows, in my view, that while the matter is to be considered in accordance with the principles developed concerning legal unreasonableness and not according to natural justice principles, regard may be had to the effect of the IAA decision on the appellant’s ability to support his case on the reconsideration by further information and further submissions. A failure by the IAA to give a review applicant such an opportunity may, depending on the circumstances, found a conclusion of legal unreasonableness.

58    A circumstance similar to the present was considered by Flick J in CRW16 v Minister for Immigration and Border Protection [2018] FCA 710. The appellant in that case argued, amongst other things, that the IAA had acted unreasonably in making its decision to proceed with the review without awaiting the outcome of a freedom of information request. Flick J held at [40] that, while it may have been prudent for the IAA to make further enquiries about the Freedom of Information Act 1982 (Cth) request, its failure to do so did not render its decision unreasonable. His Honour also held that it may be difficult to conclude that unreasonableness could operate so as to confer a procedural entitlement upon a referred applicant which was otherwise excluded by the terms of Pt 7AA.

59    Neither party in the present case sought to rely upon the decision in CRW16 and, in any event, the reasoning may have been superseded by the decision in BVD17 to which I referred earlier.

60    It does seem that there was no immediate need for the IAA to give its decision on 22 February 2019. The benchmark period of six weeks fixed in [20] of the Practice Direction was not to expire until 7 March 2019. Deferring the decision until on or shortly before that date would not have been inconsistent with the achievement of the efficient and quick review which s 473FA seeks. Even some further time after 7 March 2019 would not have been inconsistent with that objective.

61    Moreover, the period of almost two years which had elapsed since the delegate’s decision allowed for the possibility, and indeed the likelihood, that there may have been some change in either the appellant’s personal circumstances or in the situation in Sri Lanka. The IAA’s own decision to obtain the most recent country information reflected a recognition that that was so. The IAA also had information concerning the appellant’s health condition and could have foreseen that there was some prospect of deterioration in that condition.

62    In my view, reasonable decision-makers would also have regard to the resources of RASSA which could be applied to provision of further information and documents. In this respect, it is pertinent that Mr Chang had informed the IAA that RASSA had “limited resources” and “part-time staff only”.

63    In all these circumstances, I think that many, if not most, reasonable decision-makers would have considered it appropriate to allow the appellant more time in which to prepare a submission and to obtain any further information which he wished to provide.

64    However, that does not mean that it was unreasonable, in the legal sense, for the IAA member to have determined on 22 February 2019 to make the decision on the review.

65    It is pertinent to consider the circumstances known to the IAA at 22 February 2019. It had been told only that RASSA, as a new representative, wished to have the opportunity itself to gather material and to make a submission and sought a minimum period of four weeks for that purpose. The IAA was not alerted to any particular matter on which the appellant proposed to rely or to any particular change in his circumstances in respect of which RASSA wished to provide new information. Unlike the circumstances in CAK19, this was not a case in which the IAA was told of the particular nature of the information intended to be provided, of steps being taken to obtain the information and of the time which it would take for that information to be obtained. The IAA had informed the appellant by email that it aimed to complete the review within six weeks of the remittal of the matter. It knew that RASSA was aware that that was so and it had reminded RASSA of the 21 day period fixed by the Practice Direction for the provision of new information. Moreover, the IAA’s email of 13 February 2019 had informed RASSA that the decision on the review could be made at any time. As counsel for the Minister submitted, that had the effect of indicating that time was of the essence.

66    It is pertinent that the IAA had not received any response to its email of 13 February 2019 which served to put it on notice as to the appellant’s intentions. It is also pertinent that, by 22 February 2019, four weeks and one day had elapsed since the order of the FCC on 24 January 2019. The time remaining to the expiration of the aspirational six week period was relatively short.

67    Contrary to the appellant’s submissions, I do not regard the IAA’s conclusion that the appellant had had “ample opportunity” to present his case as erroneous. The appellant had in fact had the whole of the period between 8 March 2017 (the date of the delegate’s decision) and 14 September 2017 (the date of the first IAA decision) to present material to the IAA. He had provided material in the form of a submission from his former representative and his own statutory declaration, both dated 31 March 2017. He also had had the whole of the period between 24 January and 22 February 2019. In fact, it is reasonable to suppose that the appellant has had a little longer than that period because it is likely that he knew, before 24 January 2019, that the Minister was consenting to the quashing of the first IAA decision, and that the IAA would be undertaking the review afresh. It is pertinent in this respect to note that the appellant had had legal representation in the judicial review of the first IAA decision.

68    The period since 24 January 2019 could, in absolute terms, reasonably be described as short, especially in the context of a period of almost two years having elapsed since the delegate’s decision. However, one matter bearing on the adequacy of the time is the statutory framework. As already indicated, Pt 7AA contemplates that reviews will be efficient and quick. The Practice Direction required new information to be provided within 21 days of the referral to the IAA. In the appellant’s case, that could be regarded as 21 days from the FCC quashing of the first IAA decision on 24 January 2019. There was an obvious need in these circumstances for the appellant to act with expedition.

69    It is also pertinent that the IAA was not required to enquire whether the appellant’s circumstances had changed or whether new information was available.

70    As counsel for the Minister pointed out, there are features in the circumstances of CAK19 which distinguish that case from the present. First, CAK19 was held in detention, with the consequence that he had difficulties in communicating with his representatives not shared by the present appellant. The detention also made it made more difficult for CAK19’s representatives to obtain an up to date psychiatric assessment because the psychiatrist who was retained, acting pro bono, had to attend at the detention centre for the purposes of the consultation.

71    Secondly, CAK19’s representative had made repeated and polite requests to the IAA, supported by cogent arguments for it to defer making its decision. In particular, the representatives had informed the IAA of the date upon which the psychiatric consultation was to take place, the identity of the psychiatrist involved, the fact that the consultation which they arranged was on the earliest date which could be obtained for that purpose, and of their concerns about the deterioration in CAK19’s mental health. They had in effect made a persuasive case for the additional time to be allowed. Those circumstances contrast with those of the present case in which the IAA was told no more than that RASSA, having not previously assisted the appellant, required time “to gather information and documents”.

72    As already noted, the IAA was not told of the nature of the information and documents which RASSA intended to gather. In particular, the IAA was not told that there was anything about the appellant’s medical condition which was regarded as new information or in respect of which RASSA wished to make a submission. RASSA’s email of 13 February 2019 informed the IAA only that the appellant had a history of complex medical issues “which made it difficult for him to engage with the legal process”. That is, RASSA referred to the health condition as matter making appropriate the allowance of additional time, not as a matter which itself required investigation and report.

73    It is pertinent that the IAA was operating within a statutory framework in which new information, as defined in s 473DC(1), could be considered only if, amongst other things, the circumstances were exceptional – see s 473DD(a). Moreover, it had been open to the appellant and RASSA to make submissions on the material already before the IAA (Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; (2018) 260 FCR 482 at [92]) and the appellant had had reasonable time in which to do that if he wished.

74    In summary, while I consider that a number of decision-makers, acting reasonably, may have decided not to have made the decision on 22 February 2019 so as to allow the appellant more time in which to provide submissions and further information, this is not a case in which a finding of legal unreasonableness should be made. It cannot be said that the determination to make the decision on 22 February 2019, rather than allowing the appellant more time, was “arbitrary or capricious or … abandon[ed] common sense (Li at [28]) or lacked an evident and intelligible justification (Li at [76]) was disproportionate (Li at [74]), or overlooked a matter of great importance (Li at [72]). Accordingly, there was no error by the FCC Judge in rejecting the application for judicial review on this basis.

Materiality

75    The FCC Judge did not address the issue of materiality. This was so even though Mr Chang had provided an affidavit to which he annexed the information which he said he would have provided to the IAA had he been given the opportunity to do so. That information comprised three medical reports and a large amount of country information. Two of the medical reports, dated 20 and 21 December 2018 respectively, had been provided to the Department. There is, however, no indication that they had been provided to the IAA (and there was no obligation for that to have occurred given that they had not been material before the Minister’s delegate). The third medical report was dated 25 March 2019. These reports confirm that the appellant did suffer from the blood condition to which I referred earlier, the effects of that condition, the fact that the appellant was undergoing periodic treatment at the Royal Adelaide Hospital for the condition, and that the same quality of treatment may not be available to him if he is returned to Sri Lanka.

76    On the hearing of the appeal, counsel for the Minister submitted that, even if the material annexed to Mr Chang’s affidavit had been provided to the IAA, it could not realistically have led to a different outcome having regard to three considerations:

(a)    the IAA had accepted the appellant’s medical history and had found that that history did not give rise to a well-founded fear of persecution under s 36(2)(a) when read with ss 5H and 5J;

(b)    the IAA had considered whether there was a real risk that the appellant would suffer significant harm under ss 36(2)(aa) and 36(2A); and

(c)    the new material could not undermine either of those conclusions.

77    Counsel for the Minister noted in this respect that the appellant had not claimed to fear persecution under s 36(2)(a) on the basis of his health and that the IAA’s conclusions concerning the claimed institutional capacity within Sri Lanka to respond to the appellant’s health needs was not impugned by the material.

78    Strictly speaking, the submissions of the Minister should have been preceded by a notice of contention. However, counsel for the appellant accepted that proof of materiality was an essential element in the claim of jurisdictional error.

79    Counsel sought to demonstrate the materiality of the new information concerning the appellant’s medical condition by reference to the criteria for complementary protection contained in s 36(2)(aa). He submitted that the appellant’s medical condition gave rise to a real risk that, if returned to Sri Lanka, he would suffer significant harm. Counsel referred in this respect to s 36(2A)(a) and (d). The former refers to the arbitrary deprivation of life, and the latter to the subjection to “cruel or inhuman treatment or punishment”.

80    I have not described the appellant’s health condition in detail, with a view to avoiding the inclusion of material which would allow the later identification of the appellant. The reasons which follow are therefore abbreviated. It is sufficient to say that counsel’s submissions did not indicate how the health condition could result in the appellant suffering significant harm of either kind. In the circumstances, had it been necessary to do so, I would have concluded that the appellant had not established the element of materiality by reference to the information in the medical reports.

81    Counsel did not contend that the large body of country information which Mr Chang annexed to his affidavit contained any matter which was material in the present context.

82    Accordingly, for this additional reason, I consider that jurisdictional error has not been shown.

Conclusion

83    For the reasons given above, I consider that the FCC Judge was correct to dismiss the application for judicial review. Accordingly, the appeal is dismissed.

84    I will hear from the parties with respect to costs.

Associate:

Dated:    29 July 2020