Federal Court of Australia

FHZ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1189

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent is changed to the Minister for Immigration, Citizenship and Multicultural Affairs.

2.    The appeal is dismissed.

3.    The appellant is to pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The appellant is a citizen from the south of Iraq. He arrived in Australia on 25 April 2013 as an unauthorised maritime arrival. On 26 July 2016, the appellant applied for a Safe Haven Enterprise Visa, claiming to fear harm if returned to Iraq due to his Sunni faith. A Safe Haven Enterprise Visa is a class of temporary protection visa provided for by s 35A of the Migration Act 1958 (Cth). As such, it was necessary among other things for the appellant to satisfy the criteria for a protection visa in either s 36(2)(a) (the refugee criterion) or s 36(2)(aa) (the complementary protection criterion) of the Act, as I shortly explain: see s 35A(6) of the Act.

2    On 2 December 2016, a Delegate of the first respondent, the Minister for Immigration, Citizenship, and Multicultural Affairs, interviewed the appellant with the assistance of a Translating and Interpreting Service interpreter in the Arabic language. At the end of the interview, the appellant’s registered migration agent also made oral submissions in support of the appellant’s visa claim.

3    By a decision dated 16 March 2017, the Delegate refused to grant the appellant a visa. Relevantly, amongst other things, the appellant claimed that he had converted from the Shia to the Sunni faith. The Delegate did not accept that claim, finding that the appellant had not converted to the Sunni faith.

4    The Delegate’s decision to refuse to grant the appellant a visa was referred to the Immigration Assessment Authority as a “fast track reviewable decision” under Part 7AA of the Act. I later explain the statutory basis for a fast track reviewable decision.

5    Unlike the Delegate, the Authority accepted that the appellant had converted from the Shia to the Sunni faith (at [5]). As a result, the Authority obtained new information relevant to assessing the appellant’s claim to fear harm as a person of the Sunni faith, namely:

(1)     the “Country Information Report on Iraq” Australian Department of Foreign Affairs and Trade (DFAT), published on 26 June 2017 and described by the Authority as “the most recent” DFAT report on Iraq (DFAT report); and

(2)    The “Country Policy and Information Note – Iraq: Sunni (Arab) Muslims” from the United Kingdom Home Office, published on 28 June 2017 (UKHO report).

(The new country information).

6    Those reports post-‍dated the delegate’s decision, and the Authority’s decision records that it was satisfied that “there are exceptional circumstances to justify considering this information” (at [5]). Importantly for present purposes, the Authority did not provide the appellant with an opportunity to present further information or make submissions with respect to the new country information.

7    Having considered the new country information, the Authority ultimately concluded that the appellant did not face a real chance of harm if returned to his home province in southern Iraq due to his conversion to the Sunni faith, or for any other reason (at [28]; see also [33]). The Authority therefore concluded that the appellant did not meet the refugee criterion. For similar reasons, the Authority determined that the appellant did not meet the requirements for complementary protection under s 36(2)(aa) of the Act. The Authority therefore affirmed the decision not to grant the appellant a visa.

8    The appellant sought judicial review of the Authority’s decision in the (then) Federal Circuit Court of Australia. Before the primary judge, the appellant contended that the Authority’s failure to invite the appellant to give new information in relation to the new country information was legally unreasonable. On 4 March 2020, the primary judge dismissed the application for judicial review: FHZ17 v Minister for Immigration & Anor [2020] FCCA 623.

9    On 17 March 2020, the appellant filed a notice of appeal from the decision of the primary judge. This appeal was amongst the cohort of matters which were delayed an allocation for hearing due to restrictions on in-‍person hearings during the Covid-‍19 pandemic. Following those delays, the appellant sought, without opposition, to rely on an amended notice of appeal. By that amended notice of appeal, the appellant essentially contends that the failure by the Authority to exercise its power under s 473DC(1) and (3) of the Act to invite the appellant to give new information with respect to the new country information was legally unreasonable. I wish to record my gratitude to both counsel for their clear, well considered, and helpful submissions.

10    For the reasons that follow, I have reached the view that the appeal must be dismissed, with costs.

2.    FACTUAL AND LEGISLATIVE BACKGROUND

2.1    Criteria for the grant of a protection visa

11    The Authority’s decision concerned the appellant’s claim for a protection visa. It is helpful at the outset briefly to outline the relevant provisions governing the grant of a protection visa.

12    The Migration Act 1958 (Cth) (the Act) provides for the circumstances in which a person who is not a citizen of Australia (a non-‍citizen) may enter and remain in Australia. The Act provides for different classes of visas. One class of visa is a protection visa, the criteria for which are specified in s 36 of the Act. A protection visa may be granted where the criteria in s 36(2)(a) are met, namely, that “the applicant for the visa is … a non-‍citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee” (the refugee criterion). In circumstances where a person is a national of another country, a person will be a “refugee” for the purposes of the Act if they are “outside the country of his or her nationality and, owing to a well-‍founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country”: s 5H(1)(a). A well-founded fear of persecution can arise, amongst other requirements, where a person fears persecution for reason of their religion: s 5J(1)(a) of the Act.

13    Section 36(2)(aa) provides an alternative criterion for the grant of a protection visa to a non-‍citizen where the Minister is not satisfied that the person is a refugee but is nonetheless satisfied that the person is entitled to protection under Australia’s international non-‍refoulement obligations (described as complementary protection), being a person:

…in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-‍citizen being removed from Australia to a receiving country, there is a real risk that the non-‍citizen will suffer significant harm…

(the complementary protection criterion)

14    Section 36(2A) provides that a person will suffer “significant harm” if, among other things, the non-‍citizen will be arbitrarily deprived of his or her life or will be subjected to cruel or inhuman treatment or punishment.

2.2    The Authority’s decision and relevant background

15    As I have indicated, on 26 October 2017, the Authority affirmed the Delegate’s decision not to grant the appellant a protection visa. It is helpful to outline the Authority’s decision in some detail.

2.2.1    Information before the Authority

16    The Authority’s decision records that it had regard to the material given by the Secretary under s 473CB of the Act (at [3]). That information included the appellant’s application for a Safe Haven Enterprise Visa dated 26 July 2016, as well as the Delegate’s decision. The Authority also stated that the appellant had provided a submission to it on 25 April 2017, but that this submission “did not contain new information” (at [4]).

17    The Authority noted that, because the Delegate did not accept that the appellant had converted to the Sunni faith, the Delegate did not refer to independent information on the current treatment of Sunnis in Iraq (at [5]). However, the Authority reached a different view on this issue, and therefore “obtained new information relevant to assessing the [appellant’s] claim to fear harm as a Sunni” (at [5]). As indicated above, that additional information principally consisted of two reports: the DFAT Report and the UKHO report.

18    The Authority recorded that it was “satisfied that there are exceptional circumstances to justify considering this information” (at [5]). However, as I have earlier indicated, the Authority did not provide the appellant with an opportunity to give information or make submissions in relation to the two country information reports. The reasonableness of this aspect of the Authority’s decision-making process constitutes the appellant’s sole ground of appeal.

2.2.2    The appellant’s claim for protection and relevant factual findings

19    The Authority then turned to consider the appellant’s claims for protection. It is not necessary to repeat the detail of those submissions. For present purposes and bearing in mind the need to minimise details which may identify the appellant, the appellant’s claims to fear harm if returned to Iraq included the following (at [6]).

    He is Shia by birth, but converted to the Sunni faith following his marriage to his Sunni wife.

    Following his conversion, the appellant stopped going to the mosque, fearing that he would be killed if people were aware he had converted to Sunni Islam.

    In late 2010, Shia militia threatened to kill his wife’s family, and so his wife’s family moved away from their home. The appellant and his wife remained in the family home, because the appellant thought that the Shia militia believed him to still be a person of Shia faith.

    In February 2013, three men visited the appellant’s workplace. One of the men indicated that they knew the appellant had converted to Sunni faith, and subsequently made threatening remarks to the appellant. The appellant was later informed that these men were from a religious division of the Madhi Army.

    In April 2023, the appellant’s brother informed him that the Mahdi Army were planning to eradicate him due to his conversion to Sunni Islam. The appellant subsequently moved away from his family home and departed Iraq. The appellant’s brother later indicated that the Mahdi Army had raided his home, and then sought out the appellant’s family to ask further questions about the appellant.

20    The Authority accepted some, but not all, of the appellant’s claims, namely that:

(1)    the appellant was raised Shia Muslim, married a woman of Sunni faith, moved in with her family, and converted to the Shia faith under the guidance of his father-in-law (at [14]–[15]);

(2)    Shia militias targeted the appellant’s wife’s father and family because the appellant’s father-‍in-‍law was a prominent Sunni Imam, and that the family moved home as a result of these threats (at [16]); and

(3)    the appellant and his wife remained in their home after the family’s departure (at [16]).

21    However, the Authority made certain adverse findings to the appellant, including that:

(1)    the appellant had not suffered any harm after his wife’s family left the family home because the Shia militia had “no interest in the [appellant] or his wife” (at [17]). Rather, it was only the appellant’s “father-‍in-‍law [who] was the target for the harm”, not the appellant himself (ibid);

(2)    for multiple reasons, it considered the appellant’s claim that he was threatened by three members of the Madhi Army whilst working in February 2013 was “implausible” (at [18]); and

(3)    it did not accept that members of the Madhi Army raided his home or visited the home of his family, as the appellant had claimed (at [19]).

22    In essence, whilst the Authority accepted that the appellant’s father-‍in-‍law was targeted by Shia militias, the Authority did not accept that the appellant was a person of any interest to Shia militias on the basis of his conversion to the Sunni faith, his practice of the Sunni faith, his association with his Sunni wife or father-‍in-‍law, or for any other reason (at [19]).

2.2.3    Consideration of country information and conclusion

23    Having made those factual findings, the Authority considered relevant country information relating to the treatment of Sunni Muslims in Iraq. That country information primarily comprised the DFAT and UKHO reports mentioned above.

24    Based on country information, the Authority relevantly found as follows (at [20]-[22]):

Shia militias, including the Madhi Army, continue to operate throughout southern Iraq, including in Dhi Qar. Shia militias have formed the Popular Mobilisation Forces (PMF) and fight the Sunni insurgency alongside the Iraqi Security Forces (ISF). Independent information states that Islam is the main foundation of all legislation and that Regulations founded on Islamic law prohibit individuals from converting from the Muslim faith. The information before me does not suggest that individuals are harmed for the act of converting from the Shia faith to the Sunni faith itself. However, in November 2016, the United Nations High Commissioner for Refugees (UNHCR) reported a resurgence in targeted violence against Sunni Arabs and that Sunnis have faced harassment, threats, extortion, kidnappings, arbitrary arrests, evictions and killings at the hands of the PMF and ISF. DFAT notes that the actual or perceived failure of the Government to respond to such incidents has exacerbated the already heightened tensions between the Sunni and Shia communities.

More broadly, and consistently with the UNHCR, DFAT stated in June 2017, that discrimination and violence against Sunnis in Iraq is increasing. DFAT does not specifically identify provinces in which Sunnis may face such treatment; rather its risk assessment appears to be based more generally on whether an individual is in a Sunni or a non-Sunni area. DFAT states that tolerance for Sunnis in non-Sunni areas has declined, and overall assess that Sunnis located in non-Sunni areas face a high level of discrimination and violence. Relevantly, while there are Sunni communities in the south of Iraq, Dhi Qar is considered to be a Shia area, or in DFAT terms, it is a non-Sunni area. The DFAT report does not provide specific examples of recent incidents of harm to Sunnis in the southern governorates, citing only examples from central Iraq.

In its June 2017 report on Sunni Muslims in Iraq, the UK Home Office notes that while Sunnis can be marginalised by the Shia majority, the government has attempted reconciliation with the Sunni population and Sunnis are represented in society and in government. They assess that the treatment of Sunnis by the state is not sufficiently serious by its nature or repetition that it reaches persecutory treatment. In terms of non-state actors, the UK Home Office has observed that there are a few reports that Sunnis have experienced human rights abuses at the hands of Shia militias or unknown perpetrators in the southern governorates, including Dhi Qar. In February 2014, four people were arrested for distributing flyers demanding Sunnis leave the area or be killed. However, there is no information to suggest that anyone was harmed in these incidents and no other incidents of harm against Sunnis in Dhi Qar were cited in this report. The UK Home Office has assessed that overall incidents against Sunnis do not form part of a consistent or systematic risk to Sunnis in the south. They assess that in general Sunnis do not face a real risk of persecution or serious harm in the southern governorates. However, it is noted that an individual may be able to demonstrate a risk of harm in areas where there is a Shia militia presence, most notably Baghdad and the central governorates, depending on their particular profile and circumstances. Relevant factors include an individual’s family connections, profession and origin.

(Citations omitted.)

25    The Authority considered that the DFAT and UKHO reports may contain “apparently different assessments” about the situation of Sunnis in Iraq (at [23]). Specifically, while the DFAT report had found that Sunnis face discrimination and violence in non-‍Sunni areas, the UKHO report found that the treatment of Sunnis in southern Governorates does not presently amount to persecutory treatment. However, the Authority considered that these reports could be reconciled, finding that (at [23]):

DFAT offers an overall assessment of the level of violence faced by Sunnis in Shia areas of the county, while the UK Home Office offers a more specific assessment on the risk from Shia militias in the southern governorates, expressly including [the appellant’s home province]. On the information before me, I find that some Sunnis, depending on their profile, including their family connections, profession and origin, may face a real chance of harm from Shia militias in the south of Iraq, including [the appellant’s home area].

(Emphasis added.)

26    Having considered this information, the Authority found that the appellant did not have a profile of the kind which may expose him to a real chance of harm from Shia militias in southern Iraq (at [24]). Specifically, the Authority found that it was “not satisfied the [appellant] would be of interest to the Shia militias, or anyone else” if he returns to his home area in Iraq given its findings that (at [24] and [28]):

    Shia militias had never threatened or harmed the appellant based on his conversion to or practice of the Sunni faith, his association with his wife or father-in-law; and

    while the appellant remains in contact with his parents and siblings, he has not claimed that his family in Iraq have been approached by people looking for him or that he has received threats since his departure despite Shia militias being active in the area where they reside.

27    On that basis, the Authority was not satisfied that the appellant had a well-‍founded fear of persecution for the purposes of the refugee criterion.

28    Finally, the Authority found that it was not satisfied that the appellant met the criterion for complementary protection, because it did not consider that the appellant would suffer “significant harm” on return (at [33]–‍[34]). In this regard, the Authority concluded that (at [34]):

I have found above that the [appellant] does not face a real chance of harm [if returned] on the basis of the general security situation. Having regard to the independent country information set out above, I find that [the appellant] does not face a real risk of significant harm for this reason for the purpose of s 36(2A) of the Act.

29    The Authority therefore affirmed the decision not to grant the appellant a protection visa.

2.3    The Federal Circuit Court’s Decision

30    Before the primary judge, the appellant relied upon one ground of review, namely, that the Authority’s decision-making process with respect to the new country information was legally unreasonable because:

the Authority failed to consider whether or not to exercise s.473DC of the Migration Act 1958 (Cth) with respect to new information invited to be put forward by the Applicant regarding the basis on which the Authority proposed to decide the review so far as that basis was different from the basis for the Delegate’s decision.

31    The primary judge dismissed the application. The primary judge’s reasons may be summarised as follows.

32    First, the primary judge correctly found that, while “[n]ew information may be obtained” by the Authority, there “is no requirement to obtain such new information”, referring to s 473DB of the Act. That aspect of the Act is explained below.

33    Second, the primary judge held that the Authority made “confident adverse findings … against the [appellant]” in deciding that he did not have a well-founded fear of persecution including, relevantly, in rejecting the appellant’s claims that it would be unsafe for him to return to his hometown and that he had been threatened by members of the Madhi Army in his workplace (at [36]–‍[38]).

34    Third, the primary judge rejected, at a factual level, the submission that the Authority did not consider the exercise of s 473DC(3). The primary judge observed that the “decision to invite comment is a procedural matter”, and that there is no requirement to provide reasons with respect to the decision to exercise or not exercise that power (at [41]). The primary judge held, therefore, that the mere fact that this issue was not referred to in the Authority’s reasons did not mean that the discretion to invite comment was not considered: ibid; see also BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [40] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ). That ground of review is not pursued on this appeal, and so can be put to one side.

35    Fourth, the primary judge held that the legal principles outlined in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 and Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526 upon which the appellant relied, were not applicable (at [41]). Specifically, the primary judge held that the new information before the Authority “merely opined to the risks associated to Sunni Muslims in southern Iraq” (at [39]), and that (at [42]):

To suggest that it was capricious or legally unreasonable not to seek comment on what was merely new country information not specific to the applicant, in the circumstances of this case, to stretch the principles in CRY16 and DZU16 too far.

36    The primary judge therefore dismissed the appellant’s judicial review application.

3.    THE APPEAL

37    On appeal, the appellant advanced essentially the same argument as that raised before the primary judge save that, in his amended notice of appeal dated 13 December 2022, he did not press any contention that the Authority’s decision was legally unreasonable because it failed to consider the exercise of the power in s 473DC of the Act. The sole issue on appeal is, therefore, whether the Authority’s failure to exercise the power in s 473DC of Part 7AA of the Act to invite comment on the new country information was legally unreasonable.

3.1    Part 7AA of the Act and relevant principles

38    It is necessary first to explain the statutory context within which the ground of appeal arises, given that the question of whether or not an exercise or non-exercise of power is legally unreasonable turns not only upon the specific facts of the individual case, but also upon the “nature and character of the decision, the terms of the relevant statute operating in the factual and legal context of the decision, and the attendant principles and values of the common law”: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [7] (Allsop CJ, Wigney J agreeing at [90]).

39    It is not in issue that the appellant is a “fast track applicant” as defined in s 5(1)(a)(i)-(iii) of the Act and therefore that the delegate’s decision was subject to limited merits review by the Authority under the Fast Track Assessment Process (fast track review) in Part 7AA of the Act. As such, the delegate’s decision was referred to the IAA for review pursuant to s 473CA of the Act.

40    Where a referral is made, the Secretary must give to the Authority “review material” in respect of the referred decision: s 473CB of the Act. That material must include a copy of the delegate’s written reasons and any material provided to the delegate by the applicant, together with “any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review”: s 473CB(1)(a)-(c) of the Act. The Authority, in turn, must “review” a fast track reviewable decision referred to it, and may affirm the fast track reviewable decision, or remit the decision for reconsideration: s 473CC(1)-(2) of the Act. In so doing, the Authority must pursue the objective in s 473FA “of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).” That objective explains the limited scope of a fast track review, as I explain below.

41    The conduct of a fast track review is governed by Div 3 of Part 7AA (comprising ss 473DA-473DF). The Authority’s review is a de novo consideration of the merits of a reviewable decision. However, s 473DB(1) of the Act provides that, subject to other provisions in Part 7AA of the Act, the Authority must review a fast track reviewable decision “by considering the review material provided to the Authority”, “without accepting or requesting new information”, and “without interviewing the referred applicant”.

42    Section 473DC of the Act, entitled “Getting new information”, contains an exception to that rule. Subsections (1) and (3) of that provision confers a power on the Authority to obtain new information when undertaking a review, in these terms:

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

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

(b)     the Authority considers may be relevant.

    …

(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.

(Emphasis in underline added; bold in original.)

43    The use of the word “may” in ss 473DC(1) and (3) makes clear that the Authority has a discretion to get new information, including to invite a person to give evidence. That discretion is for the Authority to “‘get’, in the sense of seek out, ‘new information’”: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [23] (Gageler, Keane and Nettle JJ). Subsection (2) of that provision emphasises that the Authority is under no duty to obtain or receive any new information:

(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.

44    The term “new information” in turn is “limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b)”: Plaintiff M174 at [24] (Gageler, Keane and Nettle JJ) (citations omitted).

45    The Authority’s ability to consider new information obtained under s 473DC is subject to limitations in s 473DD of the Act. Section 473DD provides that:

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.

(Emphasis added.)

46    The requirements of ss 473DD(a) and 473DD(b) are cumulative. As such, the preconditions in subpara (a), together with either of the preconditions in subpara (b)(i) or (ii), must be met before the Authority may consider the new information: Plaintiff M174 at [31] (Gageler, Keane and Nettle JJ) (with whom Gordon J at [88] and Edelman J at [100] agreed); see also Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 at [102] (the Court); and AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; 162 ALD 442 at [13] (the Court).

47    It follows that the “primary requirement” of Part 7AA of the Act is that the Authority reviews a decision referred to it “by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant”: Plaintiff M174/2016 at [22] (Gageler, Keane and Nettle JJ), citing s 473DB of the Act. Thus, despite the ostensible width of the discretion in s 473DC(1), when read in the context of Part 7AA the general position is that the Authority conducts the fast track review on the papers by reference only to the material provided to it by the Secretary: Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; (2017) 254 FCR 534 at [19] (Griffiths J) (with whom Dowsett J at [1] and Charlesworth J at [97] relevantly agreed).

48    Section 473DE(1) in turn provides that the Authority must, in certain circumstances, give particulars of any new information considered by it and invite the referred applicant to comment upon it. Section 473DE(1) provides:

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

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

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

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

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

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

(i)    in writing; or

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

49    Importantly, however, s 473DE(3)(a) of the Act limits the obligation in s 473DE(1), by stipulating that subsection (1) does not apply to new information that “is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member”. It was not in dispute that country information contained in the DFAT and the UKHO reports were of this character, because they pertained to the general security situation of Sunni Muslims in Iraq. As such, the Authority was not obliged under s 473DE(1) to give those reports to the appellant.

50    Section 473DE is concerned to ensure that a referred applicant has an opportunity to address new information that has been, or will be, considered by the IAA under s 473DD and that would be the reason or a part of the reason for affirming the fast track reviewable decision: Plaintiff M174 at [35] (Gageler, Keane and Nettle JJ). Importantly, s 473DA(1) provides that Div 3 (together with ss 473GA and 473GB) “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.”

51    Finally, as the appellant submits, “[e]very statutory discretion, however broad, is constrained by law”: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [23] (French CJ). Thus, the discretion in s 473DC must be exercised within the bounds of reasonableness: DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134 at [35](3) (Griffiths and Steward JJ). It follows that there may therefore be circumstances where a failure to exercise the power in s 473DC of the Act is legally unreasonable and can give rise to jurisdictional error: ibid; see also the discussion of DZU16 and CRY16 below.

52    However, the test for determining legal unreasonableness is “necessarily stringent”: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [11] (Kiefel CJ). The question of whether the Court or the appellant disagrees, even strongly, with the Authority’s decision is not a basis on which the Court can set aside that decision: DBE19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 779 at [30] (Perry J). A decision not to exercise the power will be legally unreasonable if it is “lacking a rational foundation or an evident or intelligible justification, or [is] plainly unjust, arbitrary, capricious, or lacking in common sense”: CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [51] (Thawley J), quoted in DPI17 at [38] (Griffiths and Steward JJ). That is not a conclusion which is lightly reached.

3.2    The appellant’s submissions

53    The appellant submitted that the Authority’s failure to invite him to give new information with respect to the new country information was legally unreasonable and therefore that the Authority’s decision was tainted by jurisdictional error and invalid. The appellant accepted, in broad terms, that it is generally open for the Authority on review to accept an aspect of a visa applicant’s claims which was rejected by the delegate, and not to seek further information or submissions from the visa applicant regarding that aspect of her or his claims. However, the appellant submitted that it was unreasonable for the Authority to have failed to seek further information or submissions from him in circumstances where:

(1)    the appellant had last made a submission to the Delegate in December 2016 and the Authority in April 2017;

(2)    the Authority had regard to the new country information which was published subsequently in June 2017;

(3)    the two reports comprising the new country information came to different conclusions as to whether Sunnis in the south of Iraq faced a real chance of serious harm, with the DFAT report relevantly advising that Sunnis face discrimination and violence in non-Sunni areas, and the UKHO report advising that the treatment of Sunnis in southern Governorates does not presently amount to persecutory treatment; and

(4)    the Authority considered the UKHO report to provide more specific findings and therefore placed reliance on the findings in that report over the DFAT report in its decision, without affording the appellant an opportunity to comment on the new country information.

54    The appellant submitted that if he had been afforded an opportunity to comment on the discrepancy between the two country reports, there was a real possibility that he may have persuaded the Authority to prefer the DFAT assessment to the UKHO report. The appellant submitted that the consequence of the Authority’s failure to invite comment under s 473DC of the Act was one which was “plainly unjust”, and hence a jurisdictional error: CCQ17 at [51] (Thawley J), quoted in DPI17 at [38] (Griffiths and Steward JJ).

3.3    Was the Authority’s decision to not exercise s 473DC legally unreasonable?

55    In my opinion, the ground of appeal must be dismissed. The Authority’s decision to not invite the appellant to present further information or make submissions on the country information reports was not legally unreasonable.

56    First, as I have explained, the general position under Part 7AA of the Act is that the Authority’s review is undertaken solely on the papers by reference only to the material provided by the Secretary. While the Authority exercised its discretion of its own motion to get new information, it was not in dispute that the new country information was information about a class of persons of which the appellant is a member, because it relevantly pertained to the general security situation of Sunni Muslims in Iraq. It was not information specifically about the appellant. As a result, the obligation under s 473DE(1) to give the appellant particulars of new information which may be part of the reason for affirming the delegate’s decision was not engaged: s 473DE(3)(a). In other words, the new information here was precisely the kind of new information which the fast track review process envisages would ordinarily be obtained by the Authority without engaging any obligation to provide it to an applicant for comment in furtherance of the fast track objects of the Part.

57    Furthermore, there was no breach of procedural fairness because s 473DA(1) provides that Part 7AA is an exhaustive statement of the requirements of the natural justice hearing rule in relation to fast track reviews. The fact that the Authority considered new information which postdated the appellant’s submissions to the delegate and the Authority, without providing that information to the visa applicant for comment, does not elevate the Authority’s decision to the level of legal unreasonableness; nor does the fact that the Authority might have to interpret, reconcile, or determine how much weight to give to new country information from different sources. These are entirely foreseeable and necessary consequences of the fast track review process created by Part 7AA, given that the Act empowers the Authority to get this form of new information, but imposes no corresponding obligation on the Authority to invite a referred applicant to comment on information not specifically about them: ss 473DC and 473DE(3) .

58    Secondly, the decisions in CRY16 and DZU16, relied upon by the appellant, are relevantly distinguishable. Both of those cases concerned the application of s 473DC in the context of considering the relocation of the respondent: CRY16 at [8] (the Court); DZU16 at [101]-[116] (the Court). Questions of relocation arise in circumstances where an individual faces a well-founded fear of persecution in their place of habitual residence, but where that individual may face “no appreciable risk of the occurrence of the feared persecution” if returned to a different area: SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 at [23] (Gummow, Hayne and Crennan JJ). In circumstances where it is “reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution”, a person will not satisfy the refugee criterion for the purposes of the Act: SZATV at [23]-[24].

59    In CRY16, the Authority found that the visa applicant may face a real risk of harm in his place of habitual residence (at [14]). However, the Authority found that his fear of harm did not relate to all areas of his country of habitual residence, and that he could relocate to another area in that country, where he would not face a real chance of persecution (at [14]). The Authority therefore held that the visa applicant did not meet the refugee criterion under the Act: ibid. However, despite the fact that the delegate had not considered the question of relocation, the Authority had not provided the visa applicant with any opportunity to comment or make submissions on, or otherwise address, the question of relocation. The Full Court held that decision to not invite comment from the referred applicant on the question of relocation was legally unreasonable.

60    In DZU16, the Authority again considered a relocation issue but provided the visa applicant with only one day within which to make a submission in respect of that issue (at [22]-[27]). The Full Court held that in so doing, the Authority had denied the visa applicant a “meaningful opportunity” to respond to the Authority’s invitation for comment (at [157])). For similar reasons to CRY16, the failure to provide an opportunity to comment on the relocation issue was held to be legally unreasonable (at [94]).

61    That point of focus on relocation in CRY16 and DZU16 is significant for present purposes. As the Court in CRY16 at [66] and DZU16 at [81] held, there are certain mandatory requirements that fall upon a decision-‍maker in considering relocation, namely, any decision to relocate a person under the Act must be “reasonable, in the sense of ‘practicable”. That assessment, as the Court in CRY16 and DZU16 also recognised, “must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality”: SZATV at [24] (Gummow, Hayne and Crennan JJ).

62    In both CRY16 and DZU16, the Authority considered relocation in circumstances where “the Authority knew that it did not have, but the [referred applicant] was likely to have, information on his particular circumstances and the impact upon him of relocation to [the proposed location]”: CRY16 at [82] and DZU16 at [94]. In other words, the issue turned on the specific circumstances of the referred applicant. This lay at the heart of both decisions in finding that the failure to specifically seek further information from the referred applicant was legally unreasonable. Thus, the Full Court in CRY16 at [82] held that the Authority’s failure to exercise its discretion under s 473DC meant that it had “disabled itself from considering what was reasonable, in the sense of ‘practicable’, in terms of relocation”. Similarly, and borrowing the language from CRY16, the Full Court in DZU16 at [79] held that “the Authority knew that it did not have, but the [referred applicant] was likely to have, information on his particular circumstances and the impact upon him of relocation to Mazar-‍e-‍Sharif”. The Authority in DZU16 had therefore also “disabled itself from considering what was reasonable, in the sense of ‘practicable’, in terms of relocation”: at [94]. This, in turn, led to the conclusion that the failure to give the referred applicant an effective chance to respond “lacked an evident and intelligible justification”: at [94].

63    The question of legal unreasonableness arises in a very different context in the present case. Here, the appellant’s complaint relates to a failure by the Authority to seek further information or invite submissions from him with respect to country information about a class of persons of which he is a member. That is not information pertaining to the appellant’s specific circumstances and is not, therefore, information about which he might hold knowledge of a personal nature. In contrast therefore to CRY16 and DZU16, this was not a case where the Authority “did not have, but the [referred applicant] was likely to have, information” bearing on the statutory question. In this regard, Part 7AA, and s 473DE(3)(a) in particular, embody a deliberate choice by the Parliament to promote speed and efficiency in the conduct of the Authority’s review, over the provision of any opportunity to a visa applicant to comment on information that is “not specifically about the referred applicant”. To impose, therefore, an obligation on the Authority to afford a visa applicant an opportunity to comment on general information not specific to them would run counter to that statutory scheme. This is especially so where, as I later explain, the weighing process engaged in by the Authority with respect to the new country information in this case was unexceptional.

64    This is not to deny, as counsel for the appellant submitted, that if the Authority had provided the appellant with an opportunity to respond to the new country information, the appellant’s migration agent “may have persuaded the authority to prefer the assessment of risk of DFAT”, over the UKHO report. However, that does not establish that that the Authority acted in a capricious, irrational, or illogical manner or otherwise in a legally unreasonable way in denying the appellant that opportunity. The same may be said of any case where the Authority has regard to new country information about a class of persons of which a visa applicant is a member, without affording the visa applicant the opportunity to make submissions. As such, that consequence is a necessary result of the fast track process established by Part 7AA. Ultimately the question with respect to s 473DC, as Yates J explained in CMP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 634 at [78], “is not whether it was open to the Authority to seek further information, or whether it would have been reasonable for the Authority to do so. The question is whether it was legally unreasonable for the Authority not to seek the information … in all the circumstances of the case bearing in mind the nature of its review function under Part 7AA of the Act.” No such error, with respect to the decision to not invite comment from the appellant with respect to the new country information, has here been demonstrated.

65    It follows that, while the appellant may understandably consider that he has been treated unfairly in not being afforded an opportunity to comment, the appellant has not established that the failure to seek information or invite submissions from him on the new country information was legally unreasonable.

66    Third and relatedly, it has long been recognised that the weighing of evidence is a task for the Authority: DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [87] (the Court). Questions of the weight given to evidence “are not amenable to judicial review”, subject to the constraints of legal reasonableness: ibid. In this case, the weighing exercise in which the Authority engaged was entirely orthodox. Specifically, it considered new country information from two different sources, and chose to give weight to information from the UKHO report over the DFAT report. It did so on the basis that the UKHO report gave a more specific assessment of the risk from Shia militias in the southern governorates including the appellant’s home area. In the context of the statutory scheme created by Part 7AA, and bearing in mind that the information was not specific to the appellant, that process of weighing and interpreting the new country information and reaching the view that it did was within the area of decisional freedom afforded to the Authority.

4.    CONCLUSION

67    For these reasons, no error is demonstrated in the primary judge’s conclusion that it is not “capricious or legally unreasonable not to seek comment on what was merely new country information not specific to the [appellant]”: at [42]. The appeal must be dismissed with costs.

Associate:

Dated:    6 October 2023