AAA18 v Minister for Immigration and Border Protection

IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

JUDGE: SNADEN J DATE OF ORDER: 8 JULY 2019

1. The appeal is dismissed.
2. The appellant is to pay the costs of the first respondent, as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BACKGROUND 1 The appellant is a citizen of Pakistan. He is a Shia Muslim of Turi and Pashtun extraction. He was born near Parachinar, the present-day capital of Kurram District, in Pakistan's Khyber Pakhtunkhwa province (formerly the Kurram agency of what was known as Pakistan's Federally Administered Tribal Areas). He arrived in Australia - undocumented and by means of unauthorised maritime transport - on 30 May 2013. 2 Upon arrival into Australia, the appellant was detained in immigration detention on Christmas Island. On 3 July 2013, he was interviewed in Darwin by a representative of the Commonwealth Department of Immigration and Citizenship (as it was then known). During the course of that interview, the appellant claimed to have left Pakistan because he feared for his personal safety. He claimed that, "[l]iving in Pakistan as a Muslim Shia is very dangerous…" and that "[b]ecause of the war we cant [sic] go to work or get an education". He claimed that, if he were to return to Pakistan, the Taliban would behead him because of his opposition to it. 3 Shortly thereafter, the appellant was released from immigration detention, and subsequently maintained various addresses in Queensland and Victoria. 4 On 22 April 2016, the Commonwealth Department of Immigration and Border Protection (hereafter, the "Department") notified the appellant that he was eligible to receive assistance by way of the Primary Application and Information Service (the "PAIS"), a taxpayer-funded assistance program through which eligible candidates could receive advice and support from a registered migration agent in making an application for a protection visa under the Migration Act 1958 (Cth) (hereafter, "the Act"). 5 In January 2017 - and with the assistance of the PAIS - the appellant lodged with the first respondent (hereafter, the "Minister") an application made pursuant to the Act for a safe haven enterprise (subclass 790) visa (hereafter, the "Visa Application"). Attached to the Visa Application was a statement made by the appellant, in which he set out a number of bases upon which he claimed an entitlement to the visa for which he had applied. Amongst other things, he stated as follows: Since my arrival in Australia I have had the misfortune to be charged and convicted of an offense [sic] which has become public knowledge in my community. This has brought dishonour upon me, my family and my tribe. I fear that if I were to return, my own family members and tribe members will kill me for bringing them shame and dishonour. … I fear that if I were to return to Pakistan, I would be targeted and killed by the Taliban, Lashkar-e Jhangvi and other Sunni extremists because I am a Shia from Parachinar. I am easily identified by my name, my dialect [and/or] my identity documents. 6 The reference to having been convicted of an offence requires elaboration. In 2015, the appellant was arrested and later convicted of grooming and procuring a minor on social media. He served 14 months in prison upon his conviction. 7 Upon receipt of the Visa Application, the Minister (via the agency of a delegate) invited the appellant to attend an interview to provide further information relevant to it. That interview was conducted on 5 October 2017. During the course of that interview, the appellant told the delegate that his cousin had informed his family of his criminal conviction. He said: Because of this, my whole family abandoned me, they are no more talking to me. 8 On 10 October 2017, the appellant, via his migration agent, supplied some post-interview written submissions, which repeated the bases upon which he feared persecution at the hands of the Taliban and/or other Sunni extremist groups. Those submissions also stated: [The appellant] is at risk as a consequence of his condition in Australia. Our client advises that his conviction has been made known to his relatives and community back in Pakistan. [The appellant] fears he will be killed by his family for 'bringing shame' upon them. In a report on honour killings, Agence France-Presse notes that honour and the preservation of a family's good name are "highly valued" in Pakistan... … [The appellant] will be at risk of becoming victim to an 'honour killing' at the hands of his family should he be returned to Pakistan. The nature of the crime perpetrated only exacerbates this risk, as his family will seek to erase the shame he is perceived to have brought the family name. The deep cultural and societal rules which guide life in Pakistan dictate that only by death can the honour of a family be restored, which to some would be regarded as of higher value than the life of a relative… 9 On 12 October 2017, the Minister, by his delegate, refused the Visa Application. In summary, the delegate was not satisfied that the appellant met any of the criteria for protection for which s 36 of the Act provides. He accepted that, if returned to Parachinar, the appellant was at risk of relevant persecution by extremist groups, and of significant harm at the hands of his family or tribal members; but found, nonetheless, that those risks were localised and could be avoided if the appellant relocated to another area of Pakistan (specifically, Lahore, Islamabad or Rawalpindi). 10 The Minister's decision was referred for review to the Immigration Assessment Authority (the "IAA") pursuant to part 7AA of the Act. On 30 October 2017, the appellant emailed the IAA requesting an interview and an extension of time to make submissions regarding his application. Those requests were declined. 11 On 3 November 2017, the appellant forwarded to the IAA a number of documents by way of "submission". Most were reports (including media reports) outlining incidents of violence against Shia Muslims in Pakistan. One was a typed letter from the appellant that was addressed to the IAA and headed "reference letter of apology for crime commited [sic] and reason why i cannot be returned to pakistan". By that document, the appellant sought to apologise for his crime and reiterated the reasons why he feared relevant persecution if returned to Pakistan. He also stated (errors original): …I don't have any guarantee of my life safety and being convicted in Australia I am facing full threat from my own community. … I was in Australia on bridging visa while Awaiting Processing of my refugee claims, At the time that I committed my offence. Those in Pakistan my own community are Aware and as such I fear persecution should I be returned there. I request not be returned to Pakistan, for fear, threat brutality and kidnapping of my safety as I am a part of a minority that is heavily prejudiced. The IAA received what the appellant sent it but, ultimately, declined to take account of most of it. Its reasons for doing so are the subject of discussion below. 12 On 27 November 2017, the IAA affirmed the Minister's delegate's decision not to grant the appellant's Visa Application (that decision is referred to, hereafter, as the "IAA Decision"). It accepted that any fear that the appellant had of being subjected to relevant persecution upon returning to what was then known as Pakistan's Kurram agency could reasonably be avoided if he relocated to Islamabad, Rawalpindi or Lahore. With respect to the threat that the appellant attributed to his family and tribal community, the IAA observed: 11. The [appellant] states that he served a fourteen month prison term after he was convicted in Australia of sexual offences which he indicated involved "grooming" and "procuring" on social media. He stated that because of this "adultery" he has brought shame on his family who have stopped speaking to him and may kill him on return. 12. In the SHEV application the [appellant] stated that he spoke to his mother every two weeks. He claimed at the SHEV interview a few months later that he had no contact with his family. Given that he made claims based on the problems with his family in his SHEV application, it appears that his mother must have known about the offences at that time, and it appears odd, if the [appellant's] claims about his family's reaction were true, that he would continue to have regular contact with his mother even after she, and the family at large, became aware of the offence. This leads me to think that the [appellant] has exaggerated the extent of his family's concern about his criminal record, as does the claim that the "whole tribe" had stopped talking to him. The [appellant] has provided no evidence of specific threats by his family, or as to the basis of his belief that they would kill him. The claim does not appear to be supported by country information. 13. … Given the cultural propensity to hold women responsible for sexual crimes, as evidenced in the information that was before the delegate, and given the particular nature of the crimes committed by the [appellant], where it is not clear whether he had any actual physical contact with the victim, I have serious doubts that the [appellant] would be viewed as having brought dishonour on his family, certainly to the extent that they would kill him. In so finding I have taken into account the recent figures indicating that the number of men killed in honour crimes is very small. I am willing to accept that if the fact that the [appellant] has committed a crime and served a prison sentence is indeed known to his family this may be a matter of shame and embarrassment. However, I do not accept that there is a real chance that he would be killed by members of his family or extended tribe. Nor am I satisfied that the family would take any other measures against him that would amount to serious harm. I consider that the possibility that they would refuse even to have contact with him on return is purely speculative. In the light of these findings it is not necessary to determine whether the harm inflicted by the [appellant's] family would be done for any of the reasons in s.5.1(1)(a). 13 On 29 December 2017, the appellant applied to the Federal Circuit Court of Australia (the "FCC") for judicial review of the IAA Decision. That application failed: AAA18 v Minister for Immigration [2018] FCCA 3091 (Judge Riethmuller). 14 The appellant now appeals from that judgment. He asks that the orders of the FCC be set aside, and that, in their place, this court grant relief in the nature of certiorari and mandamus to quash the IAA Decision and require that it be determined according to law. He also seeks costs.

the statutory Framework 15 Section 5 of the Act relevantly defines a "fast track" applicant and a "fast track decision" as follows: fast track applicant means: (a) a person: (i) who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014…; and (iii) who has made a valid application for a protection visa… fast track decision means a decision to refuse to grant a protection visa to a fast track applicant… 16 Section 5AA defines what is meant by the phrase "unauthorised maritime arrival": (1) For the purposes of this Act, a person is an unauthorised maritime arrival if: (a) the person entered Australia by sea: (i) at an excised offshore place at any time after the excision time for that place; or (ii) at any other place at any time on or after the commencement of this section; and (b) the person became an unlawful non-citizen because of that entry; and (c) the person is not an excluded maritime arrival. (1A) For the purposes of this Act, a person is also an unauthorised maritime arrival if: (a) the person is born in the migration zone; and (b) a parent of the person is, at the time of the person's birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and (c) the person is not an Australian citizen at the time of birth. Note 1: For who is a parent of a person, see the definition in subsection 5(1) and section 5CA. Note 2: A parent of the person may be an unauthorised maritime arrival even if the parent holds, or has held, a visa. Note 3: A person to whom this subsection applies is an unauthorised maritime arrival even if the person is taken to have been granted a visa because of section 78 (which deals with the birth in Australia of non-citizens). Note 4: For when a person is an Australian citizen at the time of his or her birth, see section 12 of the Australian Citizenship Act 2007. Note 5: This subsection applies even if the person was born before the commencement of the subsection. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. (1AA) For the purposes of this Act, a person is also an unauthorised maritime arrival if: (a) the person is born in a regional processing country; and (b) a parent of the person is, at the time of the person's birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and (c) the person is not an Australian citizen at the time of his or her birth. Note 1: A parent of the person may be an unauthorised maritime arrival even if the parent holds, or has held, a visa. Note 2: This Act may apply as mentioned in subsection (1AA) even if either or both parents of the person holds a visa, or is an Australian citizen or a citizen of the regional processing country, at the time of the person's birth. Note 3: This subsection applies even if the person was born before the commencement of the subsection. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. Entered Australia by sea (2) A person entered Australia by sea if: (a) the person entered the migration zone except on an aircraft that landed in the migration zone; or (b) the person entered the migration zone as a result of being found on a ship detained under section 245F (as in force before the commencement of section 69 of the Maritime Powers Act 2013 ) and being dealt with under paragraph 245F(9)(a) (as in force before that commencement); or (ba) the person entered the migration zone as a result of the exercise of powers under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013 ; or (c) the person entered the migration zone after being rescued at sea. Excluded maritime arrival (3) A person is an excluded maritime arrival if the person: (a) is a New Zealand citizen who holds and produces a New Zealand passport that is in force; or (b) is a non-citizen who: (i) holds and produces a passport that is in force; and (ii) is ordinarily resident on Norfolk Island; or (c) is included in a prescribed class of persons. Definitions (4) In this section: "aircraft" has the same meaning as in section 245A. "ship" has the meaning given by section 245A (as in force before the commencement of section 69 of the Maritime Powers Act 2013 ). Note: An unauthorised maritime arrival who has been taken to a place outside Australia may also be a transitory person: see the definition of transitory person in subsection 5(1). It is not apparently in dispute that the appellant qualifies as an unauthorised maritime arrival. 17 Section 35A defines what is meant by the phrase "protection visa": (1) A protection visa is a visa of a class provided for by this section. … (3A) There is a class of temporary visas to be known as safe haven enterprise visas… 18 It follows that the appellant is (and was) a fast track applicant and that the Minister's decision to refuse his Visa Application was a fast track decision. Subject to presently irrelevant exceptions, part 7AA of the Act provides for a framework pursuant to which fast track decisions are to be reviewed. Relevantly, it provides for: (1) the automatic referral to the IAA of fast track decisions (s 473CA); (2) a corresponding obligation, conferred upon the IAA, to review what is referred (s 473CC); (3) the provision to the IAA of certain material relevant to fast track decisions that are referred to it for review (s 473CB); (4) the abolition, in relation to decisions referred to the IAA for review, of what would otherwise be the requirements of the natural justice hearing rule (s 473DA); (5) an obligation, conferred upon the IAA, to conduct any such review on the basis of the material that the Secretary provides to it under s 473CB (473DB); (6) the procurement of "new information" (s 473DC); and (7) the limited circumstances in which regard may be had to any new information so procured (s 473DD). 19 The latter two provisions are of relevance to the present appeal. Sections 473DC and 473DD provide as follows: 473 DC Getting new information (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that: (a) were not before the Minister when the Minister made the decision under section 65; and (b) the Authority considers may be relevant. (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances. (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information: (a) in writing; or (b) at an interview, whether conducted in person, by telephone or in any other way. 473 DD Considering new information in exceptional circumstances For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

THE GROUNDS OF APPEAL 20 By his application to the FCC, the appellant claimed that the IAA Decision was the product of jurisdictional error and, as such, was liable to the relief that he claimed. Two grounds were advanced in support of that contention, namely that: 1. The decision of the IAA [wa]s affected by legal unreasonableness. Particulars a. See applicant's submissions [2]-[9]. 2. The IAA failed to consider a claim. Particulars a. See applicant's submissions [10]. 21 Those grounds were contained within the appellant's amended application of 20 August 2018, which was filed on the same day as he filed a written outline of the submissions that he advanced in favour of the relief that he sought. Given their incorporation by reference in the particulars reproduced above, it is appropriate to set out the relevant parts of those written submissions: Ground 1 2. The [appellant] advanced a consistent claim through the protection visa process that, based on his criminal convictions in Australia, he was exposed to a risk of harm at the hands of his family if returned to Pakistan, by way of an honour killing for having shamed the family. … 4. As is apparent from the interview by the delegate, no issue was raised by the delegate about the truth of this claim, and in the delegate's reasons, favourable findings are made based on the [appellant's] home region. However, the delegate resolved the case adversely to the [appellant] on relocation grounds (CB 166-179). 5. Without any notice to the [appellant], and without having considered whether to seek out new information from the [appellant] on the point, the IAA rejected the factual basis of the [appellant's] claim to fear harm at the hands of his family (CB 300-301, [11]-[13]). 6. In these circumstances, it is apparent that the IAA had identified a new issue about this claim, in circumstances where the delegate had not asked any questions on the topic, and where the [appellant] had no reason to think that he may need to give evidence to address the matters of concern identified by the IAA. 7. Needing to mould its procedure to ensure fairness to the [appellant] despite the strictures of Pt 7AA, it was legally unreasonable for the IAA not to give notice to the [appellant] of this new issue and not to consider seeking out new information from him about concerns with his narrative, given that he had not given evidence on those matters, but in circumstances where he could not be expected to have done so at any earlier stage as the truth of the narrative had not been doubted at any earlier stage. 8. That is an especially serious error given that the IAA did not undertake any relocation analysis, thinking that the [appellant] could safely return to his home area, where he would be exposed to any risk of harm from his family. 9. This also needs further contextualisation. The IAA failed to appreciate that a person's mother would be most likely to have sympathy for her son, despite any shame he may have brought to the wider community (cf Reasons [11]), and wrongly stated that the [appellant] had not set out the basis of his family [sic] that his family may kill him (he had, being the shame that he would bring upon them). Ground 2 10. The IAA mischaracterised, and narrowed, the [appellant's] claim as being based on adultery. That was not so. The relevant "shame" was based on the [appellant] having been convicted of an offence (independent of it's [sic] sexual-based character), but the IAA assessed it only on the basis of the "adultery" country information. That failed to take consider [sic] the claim as advanced. 22 The FCC rejected both of the grounds upon which the appellant urged it to find that the IAA Decision was the product of jurisdictional error. On appeal to this court, the appellant contends, simply, that it erred by doing so. He seeks, in effect, to agitate precisely the same grounds: that is, to persuade this court that the IAA Decision was the product of jurisdictional error and, for that reason, should have attracted (and should now attract) the relief that was (and is) sought. 23 That being so, it is not necessary to here set out or consider the reasons for which the FCC rejected the appellant's application. At issue is the more central question as to whether or not the IAA Decision was attended by jurisdictional error. If it was, then it will follow that the FCC's decision that it wasn't will have been made in error. If it wasn't, then the FCC's decision will have been correct. 24 For the reasons that follow, the IAA Decision was not tainted by jurisdictional error. The FCC's conclusion was correct. The appeal will, for that reason, be dismissed with costs.

Ground One: Legal Unreasonableness 25 In summary form, the complaint to which the appellant's first ground gives voice is that it was legally unreasonable for the IAA to refuse to exercise, or consider whether it should exercise, its discretion to get "new information" from the appellant relating to the significant harm to which he claimed he was at risk because of the shame that his criminal conviction visited upon his family. As is outlined above, the Minister's delegate accepted that such a risk existed: that is, that the appellant was at risk of an "honour killing" because of his offending. The IAA did not accept that. Its conclusion was, at least in part, the product of what it considered was the appellant's conflicting evidence about the contact that he had had with his family after his conviction: during his interview with the Minister's delegate on 5 October 2017, he said that his whole family had abandoned and were no longer talking to him; yet, in the Visa Application, he said that he spoke to his mother every two weeks. That tension in his evidence led the IAA to doubt what he said about the extent of his family's concern about his criminal record (see above, [12]). 26 The appellant maintains that, in circumstances where his submission about his family's concerns (and his vulnerability to an "honour killing") had been accepted at first instance and he had no reason to think that the IAA might arrive at a different conclusion, it was incumbent upon the IAA to give, or consider giving, to him an opportunity to address, by the provision of "new information", the tension that led it to that different conclusion. 27 Two issues arise for the court's consideration: first, did the IAA fail in the manner alleged; and, second, if it did, was that failure legally unreasonable? Each is addressed in turn.

Was there a failure to consider an exercise of the discretion? 28 The Minister does not concede that the IAA failed to consider whether or not it should exercise its discretion to get new information. The appellant bears the onus of establishing that it did. 29 He seeks to discharge that onus by inviting the court to infer the relevant failure to consider from what is said in the IAA Decision, specifically the following passages: 4. On 6 November 2017 the [appellant] provided the IAA with additional material. This material consisted of a letter written by the [appellant] in which he apologised for a crime he committed in Australia, and reiterated his reasons to fear returning to Pakistan. To the extent that the contents of the letter are relevant to my consideration of his application, it does not comprise new information and I have considered it. 5. The [appellant] also provided copies of a number of media reports about sectarian violence against Shias in Parachinar and elsewhere in Pakistan. The reports were not before the delegate and may be relevant to the application, so they comprise new information. All of the reports and the events they refer to predate the delegate's decision, and the [appellant] has not satisfied me that the information could not have been provided to the delegate before the decision was made. As they relate to the security situation generally (albeit as it relates to the targeting of Shia Muslims) and report on the same or similar incidents which were referred to in information that was considered by the delegate, the [appellant] has not satisfied me that the reports are credible personal information that may, if known, have affected consideration of the application. In these circumstances, and because the delegate considered a wide range of similar, more recent information about the security situation in Parachinar and in Pakistan, I am not satisfied that there are exceptional circumstances which justify considering the new information. 30 Those passages, so the appellant contends, should be understood as an exhaustive indication of the extent to which the IAA considered whether or not it should get new information for the purposes of its determination of the appellant's Visa Application. As a matter of inference, the court should, he says, find that it gave no consideration to - that is to say that it failed to consider - whether or not it should get new information about the appellant's contact with his family. 31 The appellant referred the court to the decision of the Victorian Court of Appeal in East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605. That case, it was said, stood for the proposition that, when an administrative decision maker makes a statement containing the reasons for which a given decision was made and, in so doing, says nothing in that statement about a particular matter, a court may infer that that matter did not animate the decision. 32 The correctness of that proposition cannot be doubted: Repatriation Commission v O'Brien (1985) 155 CLR 422, 446 (Brennan J, in dissent; referred to with approval in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 346 [69] (McHugh, Gummow and Hayne JJ)); Faulkner v Conwell (1989) 21 FCR 41, 47 (Jenkinson J, with whom Woodward and Ryan JJ agreed); Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts (2011) 180 LGERA 99 ("Bat Advocacy"), 113 [46]-[47] (Emmett, McKerracher and Foster JJ); Soliman v University of Technology, Sydney (2012) 207 FCR 277, 294-295 [54] (Marshall, North and Flick JJ). 33 The Minister referred to ASB17 v Minister for Home Affairs [2019] FCAFC 38 ("ASB17" - Griffiths, Mortimer and Steward JJ). In that case - which also involved a review of a fast track decision - the court was asked to infer, from the absence of any reference in the IAA's reasons as to whether or not new information should be sought, that no consideration had been given to a possible exercise of the discretion conferred by s 473DC of the Act. The IAA's reasons contained a statement toward their commencement that "[n]o further information was obtained or received". The court (at [49]) observed: The use of the word "obtained" may suggest the Authority member turned her mind to whether or not to exercise the power in s 473DC. In the absence of any other evidence to support the inference for which the appellant contends, and in the absence of concession by the Minister, we consider the way in which [3] is expressed is a sufficient basis to conclude the appellant has failed to prove it is more likely than not that the Authority did not give any consideration to whether or not to exercise the power in s 473DC. 34 ASB17 is not as helpful to the Minister as he might prefer. In the absence of direct evidence (as is the case here and was the case in ASB17), an indication that the procurement of new information was considered in a general sense might be sufficient to indicate that it was considered - or, more precisely, might preclude or warrant against the drawing of an inference that it was not considered - in a narrower or more particular sense. But that is not the circumstance that presents in this case. 35 Here, the IAA clearly did consider whether or not it should receive new information. That consideration, though, was confined to particular species of new information: that is, the new information comprising the reports that the appellant provided to the IAA by way of "submission" on 3 November 2017 (above, [11]). The question that presents in this case is whether the court can (and should) infer, from the IAA statement that consideration was given to the receipt of some new information, that no consideration was given to the procurement of other new information. 36 Whether or not that inference should be drawn depends upon the court's assessment of the prevailing circumstances: Bat Advocacy, 113 [47] (Emmett, McKerracher and Foster JJ); Stambe v Minister for Health (2019) 364 ALR 513, 536-537 [107]-[108] (Mortimer J). One such circumstance is the absence of evidence from the decision maker about what was or was not considered: ARM Constructions Pty Ltd v Commissioner of Taxation (1986) 10 FCR 197, 205 (Burchett J), referred to with approval in Bat Advocacy, 113 [47] (Emmett, McKerracher and Foster JJ). 37 In the present case, I infer that no consideration was given to procuring (that is to say, "get[ting]") new evidence about the tension between the appellant's various statements about his communications with his family. Unlike the new information that the appellant provided by way of "submission" on 3 November 2017, the IAA was not invited to receive new information regarding that evidential tension. The absence of any such request - together with the absence within the reasons for the IAA Decision of reference to any relevant consideration having been given and the presence within those reasons of a statement that consideration was given to the receipt of other new information - in combination accumulate in support of the drawing of that inference.

Was the failure legally unreasonable? 38 Accepting that the IAA did not (that is to say, "failed to") exercise or consider whether it should exercise its discretion to get new information about the evidential tension described above (which, for the sake of convenience, is referred to hereafter as the "impugned failure"), attention must next turn to whether, in doing so, it acted in a way that bespoke jurisdictional error. 39 Ordinarily, discretionary powers conferred by statute must be exercised reasonably: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 ("Li"), 351 [29]-[30] (French CJ), 362 [63] (Hayne, Kiefel and Bell JJ), 370 [88]-[89] (Gageler J); Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 ("Singh"), 445 [43] (Allsop CJ, Robertson and Mortimer JJ). In Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 (Allsop CJ, Griffiths and Wigney JJ), this court - referring to Li, Singh and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Allsop CJ, Griffiths and Wigney JJ) - distilled (at 171-172 [58]-[65]) recent developments in the law regarding legal unreasonableness into seven points of principle: First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making: Li at [26] and [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J); Singh at [43]; Stretton at [4] (Allsop CJ) and [53] (Griffiths J). Second, the Court's task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory (Li at [66]). It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision's reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision-maker: Li at [66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 90 ALJR 197 at [23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ). Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision-making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an "outcome focused" conclusion without any specific jurisdictional error being identified: Li at [27]-[28] (French CJ), [72] (Hayne, Kiefel and Bell JJ); Singh at [44]; Stretton at [6] (Allsop CJ). … Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of "decisional freedom" within which a decision-maker has a genuinely free discretion: Li at [29] (French CJ), [66] (Hayne, Kiefel and Bell JJ). Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness: Li at [66] (Hayne, Kiefel and Bell JJ); Stretton at [7] (Allsop CJ). Such a decision falls within the range of possible lawful outcomes of the exercise of the power: Li at [105] (Gageler J); Stretton at [11] (Allsop CJ). Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute: Li at [24] (French CJ), [67]-[67] [sic] (Hayne, Kiefel and Bell JJ); Stretton at [55] and [62] (Griffiths J). The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependant and to require careful attention to the evidence: Singh at [42]. Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable: Singh at [45]-[47]. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: Singh at [47]. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes: Li at [76] (Hayne, Kiefel and Bell JJ); Stretton at [13] (Allsop CJ). Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are "plainly unjust", "arbitrary", "capricious", "irrational", "lacking in evident or intelligible justification", and "obviously disproportionate". It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a "checklist" exercise: Singh at [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes. 40 The exercise of the power conferred by s 473DC of the Act is subject to those principles of legal unreasonableness: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 ("M174"), 607 [21], 613 [49], 618 [71] (Gageler, Keane and Nettle JJ), 620-621 [86] (Gordon J), 624 [97] (Edelman J); DPI17 v Minister for Home Affairs [2018] FCAFC 2039, [36] (Griffiths and Steward JJ), [91] (Mortimer J). There are no fixed categories of circumstances by reference to which a failure to exercise, or consider exercising, the discretion might be impugned as legally unreasonable: CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641, [42] (Thawley J). Rather, an assessment of whether, in any given case, the exercise or non-exercise of the discretion is attended by legal unreasonableness must, of necessity, be case-specific: Singh, 445 [42] (Allsop CJ, Robertson and Mortimer JJ). 41 In DPI17, this court considered the elements that inform the boundaries of legal unreasonableness insofar as concerns the IAA's approach to the exercise of its powers under part 7AA of the Act. Griffiths and Steward JJ, referring to the plurality judgment in M174, listed (at [35]) six relevant propositions, being that: (1) as stated in the simplified outline of Pt 7AA in s 473BA of the Act, Pt 7AA provides "a limited form of review" of a "fast track decision" which is constituted by a refusal to grant a protection visa to an applicant who is statutorily designated to be a "fast track applicant" (at [1]); (2) the task of the IAA in conducting a review of a fast track reviewable decision is not to correct error on the part of the Minister or a delegate, but rather the IAA "is engaged in a de novo consideration of the merits of the decision that has been referred to it." The IAA must consider the application afresh and determine for itself whether the criteria for the grant of the visa have been satisfied (at [17]); (3) the various powers conferred upon the IAA by Div 3 of Pt 7AA (including s 473DC) are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, as explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li) (at [21]); (4) the term "new information" must be read consistently when used in ss 473DC, 473DD and 473DE "as 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)." These two conditions are that the information was not before the Minister or delegate when the protection visa decision was made, and the IAA considers the information to be relevant (at [24]); (5) although there is no general requirement for the IAA to give to the applicant material provided to the IAA by the Secretary (s 473DA(2)), there is nothing in Pt 7AA to preclude the IAA from giving the whole or some part of that material to the applicant in the context of exercising the power under s 473DC(3) to invite the giving of new information and s 473DA(2) does not address what may be required of the IAA in particular circumstances in order to exercise that power reasonably ([26]); and (6) s 473DE is concerned to ensure that the referred applicant has an opportunity to address new information that has been, or is to 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 (at [35]). 42 Their Honours then (at [37]) added a further four observations on that theme: First, legal unreasonableness is "invariably fact dependent and requires evaluation of the evidence" (see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 (Singh) at [47] per Allsop CJ, Robertson and Mortimer JJ and see also SZVFW at [84] per Nettle and Gordon JJ). Secondly, the correct approach is to apply the relevant general principles to the particular factual circumstances of the case and not to engage in an analysis which merely involves identifying particular factual similarities or differences between individual cases (Singh at [48] and Haq at [32]). It may well be that, for this reason, the appellant made clear that, on the appeal, he did not rely on DFW16. As Thawley J pointed out in CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (CCQ17) at [42], there are no fixed categories of circumstances in which it would be legally unreasonable to fail to consider the discretion in s 473DC. Thirdly, having regard to the clear terms of s 473DA (which provides that Div 3 of Pt 7AA and ss 473GA and 473GB are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews), the starting point for analysis in a case such as this which raises the ground of legal unreasonableness is not through a "natural justice lens" (DGZ16 at [69] and [72] per Reeves, Robertson and Rangiah JJ). Fourthly, as Thawley J correctly stated in CCQ17, merely because there has been a failure to consider the exercise of the power in s 473DC does not of itself involve error, let alone a jurisdictional error. 43 The issue, in the present case, is whether the impugned failure was outside of the IAA's "decisional freedom": in other words, whether the only course reasonably available to the IAA in the circumstances that presented in this case was to get or consider getting new information concerning the tension in the appellant's evidence about the contact that he had had with his family. The task, as Thawley J put it in CCQ17 (at [51]), is to: …evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense. 44 I do not consider that the impugned failure was any of those things. I accept, as counsel for the appellant urged, that there are circumstances inherent in this case that incline in favour of an exercise of the discretion. The tension (as it is described), though sufficient to found the adverse finding that the IAA erected upon it, was not as pronounced as evidential conflicts sometimes are. The consequences for the appellant of not addressing the tension were clearly significant. There is a public interest in ensuring compliance with Australia's obligation to afford protection to those in need of it. That interest exists notwithstanding the emphasis on speed and efficiency - and, in particular, the need to make decisions primarily on the strength of the information that was before the Minister (or the Minister's delegate) at first instance - that is inherent in the limited merits-review process for which part 7AA of the Act provides. I accept, as the appellant urged me to, that all of those circumstances inform the standard below which a review conducted under that part of the Act might be tainted by legal unreasonableness. 45 Nonetheless, there are other factors that make clear that the IAA's failure in this case to get or consider getting new information was within a course that was reasonably open to it (that is to say, was not a course attended by legal unreasonableness). Plainly, the IAA was obliged to consider the Visa Application afresh and come to its own view as to whether or not the Minister's delegate's decision should be affirmed on its merits. If it felt that the material required factual findings or conclusions that differed from those made at first instance, it was obliged to give them voice. It was under no statutory obligation to give the appellant notice that it was inclined to overturn any issue that the delegate decided in his favour; nor to get, request or accept any new information (whether at the appellant's request or otherwise). It was obliged to discharge its function in a manner consistent with the statutory objective of providing a mechanism of limited review that (amongst other things) was efficient and quick: the Act, s 473FA(1). The IAA rejected the appellant's contention that he was at risk of "honour killing" on bases other than simply that there was a "tension" in his evidence (that rejection was also a function of the fact that the appellant had not produced evidence of specific threats and that the fear was considered to be at odds with available country information: IAA Decision, [12]-[13] (above, [12]). All of these circumstances inform where it is that the boundaries of legal unreasonableness in this case lie. 46 In DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 (Reeves, Robertson and Rangiah JJ), this court observed (at [72]): In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant's case and to provide the appellant with an opportunity to respond. 47 There will, of course, be cases where the IAA does have to at least consider whether it should exercise the discretion to get new information for which s 473DC of the Act provides; and where its failure to do so might vitiate its review for reasons of legal unreasonableness. 48 DPI17 is a good example of such a case. There, the IAA affirmed a decision of the Minister's delegate to refuse a protection visa; but, like the present case, did so on a basis that differed from that which animated the initial refusal. The applicant, in that case, claimed (amongst other things) to have been the victim of sexual assault and torture in Sri Lanka. There were some inconsistencies inherent in some statements that he had made about those factual occurrences. During her interview with the applicant, the Minister's delegate positively indicated to him that she was not perturbed by those inconsistencies and was inclined to accept his narrative. The IAA, on review, was less generous: in affirming the delegate's decision, it made a series of findings adverse to the applicant's credit, in part because of those same inconsistencies. On appeal to this court, the applicant contended (and the court accepted) that the review of the delegate's decision was legally unreasonable insofar as the IAA did not exercise, or consider whether to exercise, its discretion to get new information related to the evidential inconsistencies upon which the adverse credit findings were founded. 49 This case is very different. In this case, there is no suggestion that the circumstances that gave rise to the IAA's concerns (namely, the inconsistent accounts that the appellant had given about the contact that he maintained with his family) were the subject of discussion before the Visa Application was initially decided (discussion, that is, as between the appellant and the Minister's delegate). There is no suggestion here (like there was in DPI17) that the delegate indicated to the appellant that that circumstance (the inconsistency - or "tension" - in his narrative) was one upon which he needn't be addressed (or further addressed). Indeed, the appellant offered comprehensive submissions as to why his fear that he was at risk of harm from his family should be believed, including submissions proffered after his interview with the Minister's delegate on 5 October 2017. 50 As history records, the tension in the appellant's narrative was not a circumstance that animated the delegate's decision; but that doesn't mean that it couldn't legitimately animate the IAA's affirmation of that decision. On the contrary, there is no reason why it couldn't. It may well be that the IAA, had it been so inclined, could have turned its mind to whether it ought to exercise its discretion to get new information about the tension in the appellant's accounts. It's failure to do or consider doing so, though, cannot be impugned as plainly unjust, arbitrary, capricious, irrational, lacking in evident or intelligible justification, or obviously disproportionate. It was within the IAA's "decisional freedom". 51 The appellant's contention, if accepted, would effectively impose upon the IAA an obligation to give an applicant notice - or, at least, to consider doing so - whenever it was minded to overturn a finding made initially in an applicant's favour. Appreciating that the concept of legal unreasonableness "…is not amenable to rigidly defined categorisation or precise textural formulary" (Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158, 172 [65] (Allsop CJ, Griffiths and Wigney JJ)), that is an outcome that strikes decidedly against the limited, quick and efficient process of review to which part 7AA of the Act is directed. In any event, the IAA's failure to exercise or consider exercising its discretion to get new information under s 473DC of the Act was not, in the circumstances of this case, legally unreasonable.

Conclusions 52 The IAA's decision to affirm the rejection of the appellant's Visa Application was not attended by legal unreasonableness and cannot, for that reason, be impugned as the product of jurisdictional error. The FCC was correct so to decide.

Ground two: failure to consider a claim 53 By his second ground of appeal (or the second way in which he attributes error to the FCC and jurisdictional error to the IAA), the appellant contends that the IAA did not consider a material claim that he advanced as to why his Visa Application ought to succeed. Specifically, it is said that the IAA did not address whether he was at risk of harm from his family on account of his conviction of an offence per se (as opposed to his conviction of a sexual offence, which the appellant accepts was considered). 54 There is no point of principle dividing the parties on this ground. It is comfortably clear that the IAA will have fallen into jurisdictional error if it failed to consider a claim advanced by the appellant. If the appellant should be understood to have contended that he was at risk because of the existence of his crime (and not just its nature), then the IAA was required to undertake an "active intellectual process" directed at that claim: Tickner v Chapman (1995) 57 FCR 451, 462 (Black CJ), 476-477 (Burchett J), 495-496 (Kiefel J); Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, 364 [46]-[47] (Griffiths, White and Bromwich JJ); Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1, 7 [49] (Lindgren, Rares and Foster JJ); Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153, 181-182 [106] (Rares J). 55 The contention raises what is essentially a question of construction: what was the case that the appellant advanced as to why his Visa Application should succeed? He says that it was bifurcated: that he claimed to be at risk of an "honour killing" not merely because of the nature of his offending but also because of the offending per se. The Minister says that that distinction is artificial: that the nature and existence of his offending were "symbiotic" and that the IAA was correct to assess the relevant risk of harm by reference to the sexual nature of the appellant's crime. In any event, he says, it assessed it by reference to both its nature and its existence. 56 The point can be swiftly addressed. There was no evidence of the appellant having been convicted of crimes not of a sexual nature. The discussion at his interview with the Minister's delegate on 5 October 2017 focused upon the nature of his offending: he described it as "adultery" and made it clear that "back home, the person who is an offender of adultery, his life is definitely in danger, and the verdict will be to kill them". It is the case, as his counsel contended, that other parts of the material (see above, [5], [8]) that he advanced in support of the Visa Application made no mention of the nature of his conviction, suggesting that it was by reason if its existence, as well as its nature, that the appellant feared relevant exposure to significant harm. Read fairly and as a whole, however, the distinction now sought to be drawn - with some skill, it must be said - is unduly synthetic. 57 In any event, it is apparent that the IAA did consider the risk of significant harm that might attach to the appellant by reason of his conviction per se: IAA Decision, [13] (above, [12]). That is a complete answer to the appellant's contention. 58 The appellant's second contention discloses no appellable error.

Disposition 59 The appeal is dismissed with costs. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Snaden.