Federal Court of Australia

AHA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 760

ORDERS

THE COURT ORDERS THAT:

1.    There be leave to the appellant to amend his notice of appeal in the form emailed to the Court on 30 June 2025.

2.    The appeal be allowed.

3.    Orders 2 and 3 of Judge Humphreys of the Federal Circuit and Family Court of Australia (Division 2) be set aside and in lieu thereof it be ordered that:

(a)    a writ of certiorari issue quashing the decision of the Immigration Assessment Authority made on 19 May 2020 to affirm the decision not to grant the appellant a safe haven enterprise visa; and

(b)    there be no order as to costs.

4.    There be liberty to apply for an order that a writ of mandamus issue.

5.    The first respondent do pay the appellant's costs of the appeal to be fixed if not agreed.

6.    There be liberty to any party to apply on or before 25 July 2025 to vary order 3(b) by filing written submissions of no more than three pages specifying the order sought and the contentions relied upon to support the making of that order.

7.    If the liberty reserved by order 6 is exercised by any party, then on or before 8 August 2025 any opposing party shall file any written submissions in response of no more than three pages.

8.    Any issue as to the variation of order 3(b) shall be determined on the papers.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The appellant is a citizen of Vietnam. He arrived in Australia in 2013. He applied for a form of protection visa known as a safe haven enterprise visa in April 2017. Since then, he has been living in Australia pending the outcome of his visa application. In May 2020, the Immigration Assessment Authority affirmed a decision made by a delegate of the Minister not to grant him a protection visa. His application in the Federal Circuit and Family Court for judicial review of the Authority's decision was refused. He now brings an appeal.

2    The focus of the appeal is an aspect of the Authority's reasoning concerning Facebook posts by the appellant in the period between the decision by the delegate and the decision by the Authority. The Facebook posts were relied upon by the appellant to support a claim based upon his alleged political beliefs and activities in Australia.

3    For present purposes, the key finding by the Authority as to those Facebook posts was expressed in the following terms (para 47):

Within the posts I accept the applicant does make political statements. It is unclear whether these posts involve his own wording in all cases, but I accept these political comments are critical of the Vietnamese Government. A further considered [sic, consideration] here is that it is unclear whether the majority of these postings have actually been made available or public on his Facebook page. With the exception of seven or eight of the postings, the bottom part of these screenshots (where the likes, comments and other engagements would appear) have been cropped out. An example of where this has occurred is on page 366-67 of his submission.

(emphasis added)

4    Before the primary judge, three grounds of review were advanced. One of those grounds was to the effect that the Authority had erred in misunderstanding whether the relevant Facebook posts had been posted publicly. As to that ground, the primary judge reasoned as follows (at [37]-[38]):

Ground 1a seeks to impugn the finding by the Authority that it was 'unclear' as to whether or not the applicant's Facebook postings were public. Reliance was placed on an annexure to the Affidavit of Reuben Jahnke, the applicant's Solicitor, affirmed 26 July 2021. That annexure indicated that a 'globe' next to a post meant it was public and anyone, including those not on Facebook, can see it.

Given the state of the evidence before the Authority, the Court is not satisfied that this was a factual error on the part of the Authority. Rather, it was simply what the Authority said, that the evidence was not clear. Even if it was, the Court is not satisfied the error was material in the sense that it could have realistically resulted in a different outcome.

5    On appeal, the appellant no longer seeks to identify the alleged error as a misunderstanding as to the factual position. Instead, the appellant seeks leave to advance a ground to the effect that the primary judge was in error in failing to find the following jurisdictional errors (formulations which the appellant accepts were not put to the primary judge):

(1)    the Authority failed to consider the appellant's 'public Facebook profile on which he had posted political commentary critical of the Vietnamese government'; and

(2)    alternatively, the Authority failed to consider getting new information by following a hyperlink to the appellant's Facebook profile that had been provided to the Authority by the appellant, or unreasonably exercised the power by declining to do so.

6    The appellant seeks leave to advance the new ground of review on the appeal and, on that basis, to allege a form of constructive error by the primary judge.

7    For reasons which follow, there should be leave to advance the new ground of review and the review ground should be upheld as to the alternative characterisation of the error, namely an unreasonable failure to consider getting new information by following the hyperlink.

Leave to advance a new appeal ground

8    The Minister's opposition to the new appeal ground emphasised the significance of the appellate jurisdiction and the scheme of the legislation which provides for applications for review to be brought in the Federal Circuit and Family Court. It may be accepted that circumspection in allowing new grounds to be advanced for the first time on appeal is required because they undermine the appeal process and turn the first instance hearing into a form of rehearsal. Further, if allowed, they deprive the party of an appeal right in respect of the point compared to the position if it had been advanced and decided adversely to that party at first instance. As to these matters, see AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452 at [14] (Perram J); Minister for Immigration and Border Protection v Aulakh [2018] FCAFC 91; (2018) 265 FCR 143 at [107] (Mortimer J); and Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90; (2020) 276 FCR 516 (Katzmann, O'Callaghan and Stewart JJ).

9    Emphasis was also placed on the fact that the appellant was legally represented by experienced practitioners before the primary judge. It may be accepted that a change in legal representation is insufficient, of itself, to support leave being granted: BLX16 v Minister for Immigration and Border Protection [2019] FCAFC 176 at [31] (Moshinsky, Steward and Wheelahan JJ).

10    On the other hand, it was accepted that the consequences of an adverse outcome for the appellant are significant and, if there was merit demonstrated in the new ground, that would support the grant of leave. No specific prejudice was suggested.

11    In the present instance, taking into account the matters raised by the Minister, I am nevertheless persuaded that there should be leave to raise the new ground, essentially because of three matters.

12    First, in my view, the new ground is a legal reformulation of the same fundamental concern that was raised before the primary judge concerning the reasoning by the Authority as to whether the relevant Facebook posts were publicly accessible. It is not an entirely new point. Second, it is not sought to adduce additional evidence on appeal to support the appeal ground. Third, for reasons which follow, I am persuaded that the reformulation of the point has merit, indeed it should be upheld.

The statutory provisions

13    At the time of the Authority's decision, the relevant provisions of the Migration Act 1958 (Cth) concerning the decision-making task to be undertaken by the Authority provided for:

(1)    a review on the papers to be conducted by the Authority based upon 'review material' that the Secretary of the Minister's Department was required to give to the Authority (s 473CB and s 473DB(1));

(2)    a power to get 'new information', being any documents or information that was not before the Minister when the decision under review was made, that the Authority considered may be relevant (s 473DC(1));

(3)    the power to invite a referred applicant to give new information and the regulation of the manner in which that power may be exercised (s 473DC(3) and s 473DF);

(4)    a statutory restriction upon the Authority considering new information unless certain statutory requirements were satisfied (which included the Authority being satisfied as to certain matters) (the gateway states of satisfaction) (s 473DD);

(5)    a statutory obligation on the part of the Authority in carrying out its functions 'to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with [the above requirements as to the conduct of the review]' (s 473FA);

(6)    the President of the Authority to issue directions, not inconsistent with the Migration Act or the regulations, as to the operations of the Authority and the conduct of reviews by the Authority (s 473FB); and

(7)    an obligation on the part of the Authority, as far as practicable, to comply with the directions (s 473FB(3)).

Claim (1): Failure to consider public Facebook profile

14    It will be recalled that the first way in which the alleged jurisdictional error was characterised by the appellant was as a failure by the Authority to consider the appellant's 'public Facebook profile on which he had posted political commentary critical of the Vietnamese government'. The focus of the submissions in support of that claim was upon the failure by the Authority to click upon an active hyperlink to the appellant's Facebook profile which link was said to be found in the materials that were required to be considered by the Authority.

15    The alleged failure to consider was not put as a failure to consider the forensic significance of the hyperlink itself but rather the failure by the Authority to click the link and then consider what would have been revealed by doing so. It was the position of the appellant that clicking on the link would have revealed two things: (a) active access to the appellant's Facebook profile including the pages that had been captured by the screenshots; and (b) the fact that the active pages each showed a globe icon which was said to indicate that the page was publicly accessible.

16    Taking account of the way the appeal was presented orally, there were two alternative aspects to the appellant's contentions in support of Claim (1), namely:

(1)    the information that the Authority was required to consider was the information that would be revealed by clicking the active link to the appellant's Facebook page because it was new information that the Authority had received and had decided that it would consider (by forming the required gateway states of satisfaction as to that information); or alternatively

(2)    if the active link to the appellant's Facebook page was not new information in respect of which the appellant had formed the required gateway states of satisfaction then it was information which the Authority had been asked to receive as new information and consequently it was required to consider whether to form the gateway states of satisfaction as to that information but had unreasonably failed to do so.

17    So, on the appellant's case, either the information that would be revealed by clicking the active link to the appellant's Facebook page was information that the Authority was required to consider or the information that would be revealed by clicking the active link was information in respect of which the Authority was required to consider whether it held the gateway states of satisfaction.

18    Accordingly, it is necessary to be clear about what was before the Authority when it came to the active link.

19    Relevantly for present purposes, two submission letters were sent to the Authority on behalf of the appellant, namely a letter with substantive submissions and a letter with a submission as to 'new information'.

20    The submission to the Authority as to why new information should be considered as part of its review contained a list of the new information that the appellant requested the Authority to consider. The third item in the list was:

screenshots from [the appellant's] public Facebook account showing posts critical of the Vietnamese state and or highlighting the human rights abuses perpetrated by the state;

21    Later, in support of the request, the letter said:

Photographs, Facebook and letter

The photographs, Facebook posts and letter, provided by the Applicant post-date the Delegate's decision and therefore could not have been provided earlier. The documentation attests to his attendance at demonstrations in 2018 opposing the domestic actions of the Vietnamese government and [his] participation in pro-democracy events in Western Australia including those organised by the Viet Tan and VOICE.

22    Attached to the 'new information' submission was an index to a bundle of materials referred to in the submission. It included active hyperlink addresses to various documents, including country information, each shown as the 'source' of material in the bundle. In the case of the 'Facebook Posts', there was an active link that included the name of the appellant. This was described as the 'source' of the screenshot pages.

23    The inclusion of the link as the 'source' of the Facebook screenshots in the table provided with the bundle of materials that the appellant requested the Authority to receive must be understood in the context of the terms of the Authority's Practice Direction concerning new information. It stated:

If you provide or refer to new information such as country information reports or media articles, you must:

•    attach a copy of that information or an extract of the part(s) of the information on which you rely, and

•    identify the source of the information.

Lists of publicly available documents or hyperlinks to publicly available documents are not acceptable.

24    Therefore, to comply with the Practice Direction, it was necessary to provide both a copy of the information and details of the 'source of the information'. In the present case, as to the Facebook pages, that was done by providing copies of the pages and by listing the active link as the source. In my view, in considering whether the active link was part of the new information that the Authority was being asked by the appellant to receive and consider, there must be due regard to the Practice Direction. It was both the context in which the new information was identified by the appellant and the context in which the request would have been understood by the Authority. Considered in that context, it was not the case that the identified source formed part of the new information that the Authority was being invited to get in and consider.

25    For the appellant it was submitted that the evident purpose of the Practice Direction in requiring the 'source' to be identified was to enable the Authority to verify that the information came from the specified source. I am not persuaded that a conclusion to that effect can be reached on the available material. The focus of the requirement in the Practice Direction is upon providing copies from an identified source rather than providing lists or hyperlinks. It is difficult to see why a requirement of that kind might be construed as actually seeking the provision of hyperlinks so they might be used as information.

26    Rather, it appears that the requirement for copies to be provided with the source of material to be identified was imposed to ensure that the Authority could readily identify the material to which reference was being made as well as being able to identify where that material came from. It ensured that visa applicants did not provide general references to sources or bundles of extracts of information from unidentified sources (or simply list hyperlinks without identifying the particular information said to be relevant).

27    There may be instances where the provision of a hyperlink is a convenient way to identify the source of material. However, the fact that a hyperlink is used as the means to identify a source does not make the hyperlink itself information. In any event, the material information that the appellant says would have been obtained by clicking on the active link to the appellant's Facebook profile is not that the Facebook account was the source of the information but rather that the information was indeed publicly accessible. That is to claim that the Authority should have clicked on the link to gain additional information, not to verify the source of the information on the screenshots of the Facebook account of the appellant.

28    In the appellant's main submission to the Authority (prepared on the basis that the new information was accepted), the following submission was advanced to support a submission about concerns for the appellant's safety if he was returned to Vietnam:

Additionally, the Vietnamese authorities closely monitor social media and a very simple Facebook search would reveal the Applicant's public Facebook profile (which is listed under the name [not here included] - which is not an alias, but rather his family name followed by his first and second name).

29    Necessarily implicit in the submission was a claim that the appellant's Facebook profile was publicly accessible.

30    Indeed, the same claim is implicit in the description of the screenshots which, as has been explained, were described in the list of new information as screenshots from the appellant's public Facebook account.

31    Accordingly, regard to the nature of the case advanced for the appellant reveals that it is important to differentiate between two things:

(1)    a request to receive screenshots of Facebook posts as new information (which was allowed by the Authority); and

(2)    a factual claim that the screenshots were and remained publicly accessible on the appellant's Facebook account.

32    It may be that an active link to a public Facebook account received as new information would have supported the factual claim. However, the appellant did not request the Authority to receive that information as new information. It was the screenshot pages that the appellant sought to rely on as new information.

33    In its reasons, the relevant new information was described by the Authority in the following terms (para 9):

… the submission also includes new information relating to the applicant's political activities and protests in Australia, including his involvement with the political group Viet Tan and the Vietnamese Overseas Initiative for Conscience Empowerment (Voice), and materials shared on his Facebook page.

(emphasis added)

34    As to this and other new information, the Authority reasoned as follows (para 10):

Having regard to all the circumstances, I am satisfied there are exceptional circumstances to justify consideration of the new information, including photos, letters of support and Facebook screenshots.

35    Accordingly, the new information that the appellant asked the Authority to consider was the 'screenshots from his public Facebook account' not any additional information that might be accessed by utilising an active link to the page. Nor was the link itself part of the information that the Authority was asked to consider. The link was provided as the means of identifying the source of what was described as screenshots from the appellant's public Facebook page. The Authority only received the Facebook screenshots as new information, being the information it was asked to receive.

36    For reasons that have been given, submissions for the appellant to the effect that the Authority did not perform its deliberative duty by not considering the hyperlink referred to in the index or by clicking on the link proceeded on a false foundation. It was to the effect that the hyperlink or some other evidence of the public nature of the Facebook account was before the Authority, or that the Authority had been asked to receive the hyperlink as new information.

37    It follows that both formulations of Claim (1) must be rejected. The inclusion of the active link to the appellant's Facebook page in the 'source' column did not include it in the new information received by the Authority nor did it include it within the new information that the appellant asked the Authority to exercise its power to get.

38    It also follows that the reasoning in BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44; (2019) 269 FCR 94 (Rares, Perry and Charlesworth JJ) could not be of any relevance to Claim (1) because the link was not before the Authority as information that may be considered. In that case, the Authority did not refer to various news reports relating to an event in Sri Lanka to which hyperlinks were provided in a submission to the Authority: at [3]. A case based upon a claim that the Authority failed to consider the news reports and consequently did not discharge its statutory function was upheld. Importantly, the Court reasoned on the basis that the hyperlinks formed part of 'new information' that was before the Authority: at [11], [14].

Claim (2): Failure to consider getting new information, alternatively unreasonableness

39    If it was to be found that the information available in the link to the appellant's Facebook profile was not information before the Authority (alternatively information that the Authority was requested to get), then the appellant advanced Claim (2) in the alternative.

40    As has been explained, Claim (2) was to the effect that the Authority erred in failing to consider whether to exercise its power in s 473DC to get new information by following the hyperlink that was in the index to the bundle. Alternatively, if it did consider doing so, then it was said that the Authority's decision not to get the information was unreasonable.

41    The decision of the Authority was made under Part 7AA of the Migration Act. As to that Part, Kiefel CJ, Bell, Gageler and Keane JJ said in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 at [2]-[3]:

The scheme of the Part is to impose a duty on the Authority to review the fast track reviewable decision referred to it by the Minister by 'considering' the 'review material' provided to it by the Secretary of the Department of Immigration and Border Protection at the time of referral, without accepting or requesting 'new information' and without interviewing the referred applicant, subject to the Authority having specific powers to 'get' and, in specified circumstances and on specified conditions, to 'consider' new information. One way the Authority is empowered to get new information is by inviting a person, who can be the referred applicant, to give new information at an interview which the Authority can conduct in person or by telephone or in any other way.

The duty of the Authority to review a referred decision is imposed on the implied condition that the duty must be performed within the bounds of reasonableness, and the powers of the Authority to get and consider new information are likewise conferred on the implied condition that those powers must be considered and where appropriate exercised within the bounds of reasonableness.

(footnotes omitted)

42    A decision by the Authority whether to get new information is a procedural decision that does not require reasons: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [16] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). Any determination of the extent to which the reasons indicate a failure to consider whether to exercise the power to get new information in some particular respect must be approached on that basis.

43    In addition, it is for the applicant seeking review on the basis of alleged jurisdictional error to establish the requisite facts. As was explained in BVD17 at [38]:

To the extent that the factual basis for a claim to relief is sought to be founded on an inference to be drawn from a decision-maker's statement of reasons, the appropriateness of drawing the inference falls to be evaluated having regard to two settled principles. One is that such a statement of reasons must be read fairly and not in an unduly critical manner. The other is that it must be read in light of the content of the statutory obligation pursuant to which it was prepared.

(footnotes omitted)

The Authority's reasons in the present case

44    In the present case, as to new information, the part of the Authority's reasons that focussed upon the issue whether the Facebook posts were public was a section headed 'Political activities in Australia'. The Authority began by finding that the appellant 'raised no claims to have been politically active in Australia, or that he had any involvement with any political groups' in his visa application or during the visa interview (para 39). These were matters found to be raised 'for the first time' in a post interview statutory declaration (para 40). The Authority found it to be 'significant that the applicant did not raise these claims in his visa statement or his visa interview, despite having multiple opportunities to do so' (para 41).

45    The Authority then listed 'new information to evidence his political activities in Australia' provided to the Authority (para 42). The list took the form of a description of what was depicted in the photos and postings that were captured by the screenshots.

46    The Authority then stated the following conclusion: 'I have weighed the applicant's evidence and submissions about his political involvement in Australia, but for the reasons that follow, I am not satisfied these claims are genuine' (para 43). Reasoning to support that conclusion then followed.

47    After observing that initially the 'Facebook evidence' appeared quite substantial, the Authority stated that 'closer scrutiny of that evidence raised a number of concerns' (para 44).

48    The political engagement of the appellant on Facebook was found to be 'uneven and irregular' (paras 45-46). As has been noted, the Authority then made the following finding (para 47):

Within the posts I accept the applicant does make political statements. It is unclear whether these posts involve his own wording in all cases, but I accept these political comments are critical of the Vietnamese Government. A further considered [sic, consideration] here is that it is unclear whether the majority of these postings have actually been made available or public on his Facebook page. With the exception of seven or eight of the postings, the bottom part of these screenshots (where the likes, comments and other engagements would appear) have been cropped out. An example of where this has occurred is on page 366-67 of his submission.

(emphasis added)

49    The Authority then found (para 48):

The cropping of this evidence may well be unintentional, but what the applicant has shown in terms of actual engagement and sharing of his political activity on Facebook (in terms of likes, comments and shares) is limited.

50    The Authority then reasoned by reference to the nature of the posts that, beyond sharing them, 'there is no evidence the applicant has organised protests or otherwise sought to use Facebook to extend his political activism' (para 49).

51    After describing the evidence of the appellant's political activity to be 'irregular, superficial and [demonstrating] little engagement and political activism outside of Facebook', the Authority concluded (para 50) with the following:

I have weighed the fact that the evidence provided may not encompass the totality of his Facebook activity, but what he has provided raises significant questions for me as to whether his engagement on Facebook, and his claims to be politically active, is genuine.

52    There followed a consideration of other evidence advanced by the appellant to the Authority to support his claim that he had been involved in identified political organisations that were recognised as standing against the government in Vietnam since being in Australia (paras 51-58). In that part of the reasons, the Authority found that it was not satisfied that the appellant was actually involved or engaged with those groups (para 57).

53    The Authority then reached the following conclusions concerning the appellant before turning to consider country information (paras 59-60):

I accept political beliefs arise on a spectrum. I have weighed whether his attendance at protests in 2018 was solely for the purpose of strengthening his protection claims. However, I also note this evidence was posted on Facebook, and is some of the only evidence that shows engagement with his social network. While not demonstrating activism, I accept he has shared some political statements on Facebook. In that context, I am prepared to accept the applicant may hold some low level progressive political views. For these reasons, I have not disregarded his conduct in Australia completely. However, consistent with my other concerns, I consider his social media and other activities in Australia were infrequent, superficial, passive rather than activist, and low level.

I have weighed the applicant's evidence about his involvement in Australia, and his intentions to be politically active on return to Vietnam. The applicant contends he would be seen as a political dissident on return to Vietnam, however based on my assessment of activities in Australia, I am not satisfied this would be the case. I am also not satisfied he would be politically active, involved or outspoken on return to Vietnam.

(emphasis added)

54    Later, in the course of dealing with the country information, the Authority made the following statement concerning the appellant (para 65):

In terms of the applicant's claims, I accept there is evidence of his activities in Australia. I accept that his attendance at one of the 2018 protests is on his social media. While remote, I accept it is not impossible the Vietnamese authorities could identify the applicant from this protest. However, I consider the chance that the applicant would be identified and targeted by the Vietnamese authorities for his participation, to be very remote. Firstly, there is the remote chance of him being identified. Secondly, while the applicant may have attended two protests and two events, I consider the nature of his participation was superficial, opportunistic, and low level. There is no suggestion he was active or involved in the organisation of these protests or events, and I am not satisfied he has any other active roles [in] these groups. I am satisfied this is how he would be assessed by the Vietnamese authorities, and that his activities or profile would not be at a level that would give rise to the adverse interest of the Vietnamese authorities.

(emphasis added)

55    For present purposes, two observations may be made about the reasoning pathway of the Authority as just summarised. First, the Authority expressed doubt as to whether the majority of the Facebook posts relied upon by the appellant had actually been made available to the public on his Facebook page. Second, despite that doubt, other aspects of the Authority's reasoning accepted that the appellant had posted material on his Facebook profile that could be used to identify him as a participant in at least one protest. However, it is unclear whether, in doing so, the Authority was proceeding on the basis that the information was publicly accessible or that there may be some other means by which the Vietnamese authorities might identify the appellant as a participant in the protest.

Whether the Authority considered getting new information by accessing the active link to the appellant's Facebook account

56    Given the terms in which the Authority expressed its reasons (particularly at para 47 of its reasons as quoted above), I regard it as implausible that the Authority turned its mind to whether to activate the link to the appellant's profile that was included in the index to the new information and then formed the view that it did not hold the gateway states of satisfaction, yet did not say so in its reasons but instead expressed doubts about the matter in the way that it did.

57    Further, as has been explained, the request that was made did not concern (a) the link to the Facebook profile; or (b) the information that might be revealed by its activation as to the extent to which the screenshots were of publicly available pages. Rather, it was included only as the 'source' of the screenshots.

58    In those circumstances, I conclude that the Authority, in fact, did not consider exercising its power to get the link and the information that might be revealed by its activation as 'new information'.

The substance of the appellant's claim

59    It follows that the substantive question raised by Claim (2) is whether the failure by the Authority to consider exercising its power to get new information was legally unreasonable.

60    The submissions for the appellant were to the effect that the contention that he had been politically active by posting on a Facebook page in his own name that was publicly accessible was a significant part of his claim and uncertainty as to whether the posts were publicly accessible was readily capable of resolution by clicking on the link in the index or by inviting a submission on the point (which could have directed the Authority to the active link).

61    It is certainly the case, as has been explained, that the submission made by the appellant to the Authority on the basis of the new information was that the screenshots were of information that was available on the appellant's publicly accessible Facebook profile. Further, the Authority understood that aspect to be a significant enough part of the appellant's case that it was addressed in some detail in its reasons. Further, having regard to the receipt of the screenshot pages as new information, it was not an aspect that had been addressed by the delegate.

62    The leading authorities as to what may amount to an unreasonable failure to consider the exercise of the power to get in new information were referred to by Banks-Smith J in CVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1046 at [112]-[116].

63    The following matters were advanced by the appellant to support his claim that the failure to click the active link to his Facebook profile and obtain the information that would be revealed by doing so was legally unreasonable:

(1)    whether the appellant's social media presence was publicly accessible was said to be 'a critical issue' that was a significant aspect of his claim to protection on the basis of his political profile;

(2)    the Authority's reasoning was said to recognise that additional relevant information as to the Facebook account was available because of its acknowledgment that there may have been inadvertent omission of information;

(3)    the relevant information was readily available; and

(4)    as the claim made was that the appellant's political profile had evolved since the delegate's decision, it concerned an issue that had not been ventilated before the delegate.

64    Aspects of the contentions advanced in support of these matters attributed to the Authority knowledge about the significance of a Facebook profile link, particularly what would be revealed by clicking on the link as well as the significance of the presence of a small globe icon on the screenshots. The submissions tended to invite the Court to assess the reasonableness of the Authority's failure to consider exercising the power to get new information by clicking on the link viewed through a lens of awareness of such matters.

65    Before the primary judge, there was evidence led by way of affidavit of statements from the Facebook help page. They concerned the 'audience selector' functionality of Facebook. It included reference to a 'public' option indicated by a globe icon. Next to that description the help information was as follows:

When you share something with Public, that means anyone, including people off Facebook, can see it.

66    The primary judge referred to that evidence as indicating that 'a "globe" next to a post meant it was public and anyone, including those not on Facebook, can see it'. However, evidence of that kind was not before the Authority nor was it a matter the subject of the appellant's submission to the Authority.

Materiality and unreasonableness

67    Before considering whether unreasonableness was demonstrated in the present case, it is necessary to say something about materiality. The submissions for the parties were advanced on the basis that there was a form of two-step process when it came to determining whether jurisdictional error in the form of legal unreasonableness had been demonstrated. However, it is not correct to divide the analysis in that way. The correct approach was explained in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [6] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ):

In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. An example of the latter is unreasonableness in the final result. In such cases, the error necessarily satisfies the requirement of materiality.

(footnotes omitted, emphasis added)

68    So, where the error alleged is legal unreasonableness, matters which might be thought to bear upon whether there was a realistic possibility that the decision that was made could have been different if the identified jurisdictional error had not occurred are subsumed within the evaluation as to whether there has been legal unreasonableness. It makes no sense to speak of a category of decision that exceeds the bounds of legal reasonableness but nevertheless is not jurisdictional because it was unreasonable in an immaterial respect. Put another way, making a decision by engaging in conduct which would be immaterial in the sense explained in LPDT would not be unreasonable.

Findings and conclusions as to alleged unreasonableness

69    As has been mentioned, it is for the party alleging jurisdictional error to establish the facts that are relied upon to demonstrate the error.

70    Taking these matters into account, the appellant has established the following matters for the purposes of Claim (2):

(1)    a significant part of the appellant's claim for protection was the claim concerning his political beliefs formed and activities undertaken since the delegate's decision;

(2)    the screenshots of the Facebook posts were advanced in support of that claim;

(3)    the new information in the form of the screenshots was described as being screenshots taken from the appellant's publicly available Facebook account;

(4)    the 'source' of the screenshots as so described was identified by way of an active link;

(5)    the screenshots were received as new information, the active link was not;

(6)    in the appellant's submissions, the Facebook posts were claimed to be publicly available;

(7)    the Authority's reasons included a finding that it was unclear whether the majority of the posts had actually been made available or public on the appellant's Facebook page;

(8)    the finding to that effect was described by the Authority as a 'further' consideration;

(9)    it is not possible to conclude with any certainty that the findings by the Authority as to the low level of the appellant's political beliefs and activities (and hence how he would behave if returned to Vietnam) were not affected by that 'further' consideration;

(10)    the active link was available to the Authority;

(11)    consequently, it was very easy for the Authority to simply click on the link and see whether it could be determined from doing so that the profile was publicly accessible;

(12)    it was very obvious that the link was identified by the appellant as the source of publicly accessible versions of the screenshots; and

(13)    it is possible that what would have been revealed by clicking on the link may have persuaded the Authority that the appellant's Facebook account was publicly available.

71    It was submitted for the Minister (framed in terms of materiality) that, in order to succeed, the appellant had to demonstrate, as a matter of fact, what the Authority would have seen if it had clicked on the active link. It was said that without that evidence the appellant had failed to prove the facts necessary to demonstrate jurisdictional error. I do not accept that submission. It was not necessary for the appellant to prove what the Authority would have seen if it had clicked on the link, specifically what could have been seen as available or public on his Facebook profile at the time. The issue in the present case is whether, in all the circumstances, it was unreasonable for the Authority not to consider whether to exercise its power to receive the information that would be available by clicking the link and for that purpose forming a view as to the matters the subject of the gateway states of satisfaction.

72    Of course, if in all the circumstances, there was complete uncertainty as to what might be shown by clicking the link then that would be a matter that would bear upon whether the Authority's failure to consider the exercise of the power was reasonable. However, that was not the present case. Significantly, the appellant had presented the active link as the source for documents that were described as screenshots from a publicly available Facebook page. There was no issue that the link was active and, as such, if clicked by the Authority would have directed the Authority to the appellant's Facebook profile. An obvious everyday functionality like clicking an active link was not a matter that required explanation by an applicant to the Authority in order to expose its possible significance as a source of information. Therefore, the active link was presented to the Authority as the source of Facebook pages that were publicly available. Given the Authority's uncertainty about whether the information was publicly available, clicking on the link presented as a very obvious and simple way in which the Authority might find information that was relevant to that issue.

73    Although I have concluded that there was no request by the appellant for the link to be received as new information, the Authority's power to receive the link was not dependent upon a request being made by the appellant. The Authority could invite the provision of that information: s 473DC(3). It was the consideration whether to exercise that power that had to be undertaken within the bounds of reasonableness.

74    In the unusual circumstances of the present case, I am persuaded that it was legally unreasonable for the Authority not to consider getting 'new information' by clicking on the link that was provided as the source of what was described by the appellant as screenshots from the appellant's public Facebook account. That is because of a combination of the ease with which access to that information could have been secured and the significance of that information for the specific claims made by the appellant (as evidenced by the focus in the reasons upon the screenshots and the issue whether they had been published on the appellant's Facebook page and, if so, in a way that was publicly accessible). It is also supported by the fact that the issues in relation to the Facebook posts were not matters considered by the delegate.

75    The appellant's submissions to the Authority placed significance upon what was said to be the publicly accessible nature of the Facebook account. In particular, concern was expressed about the claimed practice of the Vietnamese authorities closely monitoring social media and the consequences that would have for the appellant if he was returned to Vietnam. Access to what was claimed to be an active version of the appellant's public Facebook profile would have provided the Authority with additional information concerning that claim. The additional information may have been in the form of navigable access to active pages in the same terms as the screenshot pages with comments. It may have included pages that were identified by the globe icon. The Authority may have reached a conclusion that was more favourable to the appellant in respect of the contention that the Facebook profile was publicly available. That fact may in turn have had a bearing on the Authority's view as to the character of the political views held by the appellant concerning the Vietnamese government and whether he would be politically involved or outspoken if he was returned to Vietnam.

76    In all those circumstances, with due regard to the legislative scheme and the nature of what is required to demonstrate unreasonableness, I conclude that the failure by the Authority to consider exercising the power to receive new information by clicking on the active link as a means of receiving that new information was legally unreasonable.

Conclusion and orders

77    For reasons that have been given, there should be leave to amend the notice of appeal and the appeal should be allowed with costs. There should be orders setting aside the relevant orders of the primary judge and in lieu thereof an order for a writ of certiorari to issue.

78    Two further matters arise. First, the appellant seeks an order for mandamus directed to the Administrative Review Tribunal which is not named as a party to the proceedings. Submissions were not received as to that aspect. There was no suggestion that the appropriate statutory decision-maker would not give effect to any order allowing the appeal and quashing the decision of the Authority by making a fresh decision. In the circumstances, I will not make an order for mandamus but will reserve liberty to the appellant to apply. Second, the parties made brief submissions as to whether it was appropriate for the costs order below to be disturbed in circumstances where the appeal has succeeded on a point expressed in terms that were not advanced before the primary judge. In circumstances where the appellant has been successful on a point that concerned the same underlying complaint, though framed in different legal terms, I am presently inclined to make no order as to costs of the proceedings before the primary judge. I will make that order, but reserve liberty to apply to vary the order.

Associate:

Dated:    11 July 2025