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[2020] HCA 34
appellant. Appeal allowed; orders of the Federal Court set aside and, in their place, appeal to that Court allowed with orders setting aside Federal Circuit Court orders, quashing the IAA decision of 16...
1 cited instrument linked from this judgment.
The High Court held that the Immigration Assessment Authority acted unreasonably when it rejected a Tamil asylum seeker's claims of torture after only listening to an audio recording of his interview. The original decision-maker had met the man in person, seen his scars and believed his story was believable. The review body could not fairly disagree on credibility without talking to him face to face to watch how he gave his evidence. Because this flaw affected the outcome, the Court sent the case back for a proper decision.
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2,769 words · generated 24/04/2026
The appellant, a Tamil citizen of Sri Lanka, arrived in Australia by boat on 27 August 2012 and became an unauthorised maritime arrival. On 23 October 2015 he lodged a valid application for a temporary protection visa in which he claimed that members of the Sri Lankan Army had repeatedly detained, beaten and, on one occasion in May 2011, sexually tortured him on suspicion of links to the Liberation Tigers of Tamil Eelam. The delegate of the Minister conducted an in-person interview with the appellant. At the delegate's request the appellant removed his shirt and showed scarring on his back. The delegate found the appellant's evidence, including the claim of sexual torture, to be plausible and broadly consistent with country information. Nevertheless the delegate refused the visa on the basis that country information showed improved conditions for Tamils and the appellant no longer faced a real chance of serious harm.
The delegate's decision was referred to the Immigration Assessment Authority as a fast track reviewable decision under s 473CA of the Migration Act 1958 (Cth). The Secretary provided the IAA with the review material required by s 473CB, which included a statement of the delegate's findings, the appellant's written claims, and an audio recording (but not a video recording) of the in-person interview. The IAA listened to the audio recording. It accepted that the appellant had experienced low-level harassment but rejected his claims of repeated serious harm. In particular the IAA found the appellant's evidence in the interview to be generally lacking in detail, that he appeared unable to expand on his written claims, and that at times he sounded vague and hesitant. The IAA concluded there was no credible information that the appellant was of interest to Sri Lankan authorities and that he did not have a profile that would attract adverse attention. It further reasoned that country information showed changed circumstances in Sri Lanka such that the appellant would not face a real chance of serious harm. The IAA affirmed the delegate's decision on 16 December 2016.
The appellant sought judicial review in the Federal Circuit Court, which dismissed the application on 23 March 2018. An appeal to the Federal Court was dismissed on 16 April 2019. Bromberg J accepted that a reasonable decision-maker might have considered exercising the power under s 473DC to invite an interview but held that any error was not material because the IAA had an independent country-information basis for its decision. The appellant appealed to the High Court. On 14 October 2020 the High Court allowed the appeal, set aside the orders below, quashed the IAA decision and remitted the matter to the IAA to be determined according to law.
The plurality (Kiefel CJ, Bell, Gageler and Keane JJ) held that Pt 7AA imposes a duty on the IAA to review a fast track reviewable decision by considering the review material provided under s 473CB without accepting or requesting new information and without interviewing the referred applicant, subject to the powers in ss 473DC and 473DD. That duty and those powers are conditioned by an implied requirement of legal reasonableness. Reasonableness extends not only to the outcome but to how the decision is made. An informational gap arises when a delegate conducts an in-person interview that is only audio-recorded: the review material does not convey the visual impression of the applicant's demeanour that was available to the delegate. Demeanour can be an important aspect of credibility assessment.
In the present case the delegate had accepted the appellant's account as plausible after observing him in person, including his demonstration of scarring. The IAA, listening only to the audio, found the account vague and hesitant and rejected central claims despite acknowledging ample country information confirming sexual torture of suspected LTTE sympathisers and despite sympathetic questioning by the delegate. The IAA did not suggest the account was inherently improbable on the country information alone. In those circumstances it was legally unreasonable for the IAA to reject the account without inviting the appellant to a further interview so that it could observe his demeanour and develop its own informed impression. The failure to do so meant the IAA was not in as good a position as the delegate to assess credibility. The breach lay not in reaching a different view on credibility but in failing to use the powers under ss 473DC and 473DD to supplement the review material and bridge the informational gap.
The plurality emphasised that the scheme does not require the IAA to interview whenever credibility is in issue or whenever it differs from the delegate. It is only where the delegate has accepted an account substantially on the basis of demeanour observed in person, and the IAA proposes to reject that account on the basis of how the applicant sounded on audio, that reasonableness compels an invitation to interview in the absence of good reason to the contrary. Here no such good reason existed. The error was material because the IAA's finding that the appellant lacked a relevant profile was critical to its assessment of the country information; the two limbs were not independent.
Nettle J, with whom Gordon and Edelman JJ agreed in substance, approached the matter by analogy with an appeal by way of rehearing. Where a delegate's credibility assessment is informed by demeanour, the IAA must respect the delegate's advantage unless the findings are glaringly improbable or contrary to compelling inferences. The IAA's departure here was not based on any such error but on giving different weight to inconsistencies and hesitation that had been apparent to the delegate. That departure was legally unreasonable. Nettle J and Gordon J also held that the country-information reasoning was not independent of the adverse credibility findings. Edelman J added that re-presenting the same account at a further interview would not constitute new information, but the plurality's reasoning on the informational gap and unreasonableness in process was sufficient to dispose of the appeal.
Before this decision the Court had examined Pt 7AA in Plaintiff M174/2016 v Minister for Immigration and Border Protection. That case established that the IAA conducts a de novo consideration of the merits, that it must consider the review material provided by the Secretary, and that "new information" is any communication of knowledge of facts or circumstances not before the Minister that the IAA considers might be relevant. The Court had also recognised that the duty to review and the powers to get and consider new information are conditioned by reasonableness. However, the precise content of that condition in relation to credibility findings and demeanour had not been settled. Lower courts, including in DPI17 v Minister for Home Affairs, had begun to explore whether the IAA must consider exercising the s 473DC power where it reaches different credibility findings from the delegate, but the materiality of any such failure remained contentious.
This judgment clarifies that reasonableness can compel the IAA to invite an interview to assess demeanour where an informational gap exists and the delegate's acceptance of claims was substantially based on an in-person assessment of the manner in which the account was given. After the decision the law is that the IAA is not required to interview merely because credibility is in issue or because it differs from the delegate, but it will act unreasonably if it rejects an account the delegate accepted as plausible on demeanour grounds without first obtaining its own visual impression unless there is good reason not to do so. The judgment also confirms that the implied condition of reasonableness extends to the decision-making process, not merely the outcome, and that materiality is bound up in the characterisation of unreasonableness in this context. Administrative practice (such as audio-only recording of in-person interviews by the delegate) can give rise to the informational gap that triggers the obligation.
The separate reasons of Nettle, Gordon and Edelman JJ emphasise respect for the delegate's demeanour advantage by analogy with appellate restraint, while the plurality frames the issue as one of bridging an informational gap through the statutory powers. The result is a nuanced but binding obligation that operates only in the identified circumstances.
In the reasons of Kiefel CJ, Bell, Gageler and Keane JJ the following passage appears: "However, the potential for a record of an interview conducted in accordance with the Code of Procedure to take a variety of forms creates potential for an informational gap to arise in the review material where an interview with the referred applicant has been conducted by the delegate in person and has been audio recorded but not video recorded. Provision of the audio recording as part of the review material will then not put the Authority in the position of having and being able to examine for itself the totality of the information available to the delegate... Missing from the review material will be a visual impression of how the referred applicant appeared during the interview – his or her demeanour." (Plain-English translation: When the delegate meets someone face-to-face but only a sound recording is sent to the IAA, the IAA misses the chance to see how the person looked and behaved. That missing visual information can matter for deciding whether the person is telling the truth.)
Another key passage: "The Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given. That is what happened in this case." (Plain-English translation: It is unreasonable for the IAA to say "I don't believe you" when the original officer who met you did believe you, if the only reason is how you sounded on a tape and the IAA never met you. That is exactly the mistake made here.)
From Nettle J: "Given that the delegate's acceptance of the appellant's claims was thus to a significant extent informed by the delegate's assessment of the appellant's demeanour as derived from the benefit of seeing and hearing the appellant give evidence at the TPV interview, and that the delegate's assessment was not glaringly improbable, contrary to compelling inferences or otherwise shown to be infected by error, it should be concluded that it was legally unreasonable for the IAA to depart from the delegate's assessment of the plausibility of the appellant's claims." (Plain-English translation: The original officer believed the story after watching the man explain it. Nothing in the story was impossible or contradicted by clear facts. Therefore it was unreasonable for the IAA to disbelieve him without the same advantage of seeing him.)
Gordon J states: "The Authority will act unreasonably if, without sufficient reason, it rejects an account given by the referred applicant in an interview conducted in person between the referred applicant and the delegate, and which the delegate accepts in making the referred decision." (Plain-English translation: If the delegate who met the person believed the story, the IAA cannot simply disbelieve it based on a recording unless it gives a very good reason for doing so.)
This precedent is triggered where four cumulative conditions are met. First, a delegate has conducted an in-person interview and accepted the applicant's account as plausible or credible substantially on the basis of the manner in which the account was given, including visual demeanour and any physical demonstration such as showing scarring. Second, the only record provided to the IAA is an audio recording, creating an informational gap as to demeanour. Third, the IAA, after listening to the audio, forms the view that the account is vague, hesitant or lacking in detail and proposes to reject it on that basis, even though country information does not render the account inherently improbable. Fourth, there is no good reason (such as incontrovertible facts or glaring improbability) that would justify departing from the delegate's assessment without obtaining the IAA's own visual impression.
The precedent does not apply where the delegate did not interview the applicant at all, where the interview was conducted by telephone, where the delegate's acceptance of the claims did not depend to any significant extent on demeanour, where the IAA's adverse view is based on country information that is independent of credibility, or where the IAA identifies a sufficient reason to depart from the delegate's view without needing to observe demeanour. The plurality expressly rejected the notion that an interview is required merely because credibility is in issue or because the IAA differs from the delegate. The trigger is narrow and fact-specific, arising from the administrative practice of audio-only recording of in-person interviews by the delegate who decides the application.
The judgment itself contains competing strands of reasoning that later courts must reconcile. The plurality treats demeanour observed by the IAA at a further interview as capable of constituting new information that can be got under s 473DC and considered under s 473DD where exceptional circumstances exist, with the informational gap itself potentially constituting exceptional circumstances. By contrast, Nettle, Gordon and Edelman JJ reason that a referred applicant's re-presentation of the same account at interview with the IAA would not be new information, because the account was already before the delegate, and that demeanour is not separable from the account in a way that satisfies s 473DD(b). All members of the Court agree that legal unreasonableness arose on the facts, but the characterisation of demeanour as new information or otherwise differs.
The plurality's emphasis on reasonableness in the decision-making process, rather than solely the outcome, builds on the earlier analysis in Plaintiff M174/2016. Nettle J's analogy with appellate restraint on credibility findings where demeanour is involved provides an alternative doctrinal pathway. Gordon J and Edelman J reinforce that the IAA cannot simply put to one side a central part of the review material (the delegate's plausibility finding based on demeanour) without sufficient reason. Later courts are therefore directed to examine the delegate's reasons closely to determine whether acceptance of claims was substantially demeanour-based, to assess whether the IAA's reasons disclose good reason to depart without interview, and to consider whether the credibility and country-information limbs of the IAA's reasoning are interdependent.
The judgment leaves open whether the power under s 473DC can be exercised solely to assess demeanour where the further interview would involve re-presenting the same account. The plurality contemplates that the IAA's visual impression would itself be new information, while the concurring reasons suggest that repeating the account cannot generate new information and that demeanour is inseparable from an account that could have been given to the delegate. Resolution of that tension will affect how broadly the interview power is available.
Another open question is the precise content of "good reason" that would justify the IAA departing from a delegate's demeanour-based credibility finding without interview. The plurality gives the example of an account that is glaringly improbable on the country information alone, but the boundaries remain to be worked out. The circumstances in which an informational gap will be sufficiently aberrant to constitute exceptional circumstances under s 473DD are also not exhaustively defined; the plurality suggests the gap may itself be enough, but frequency of occurrence in practice is irrelevant.
The relationship between materiality and legal unreasonableness is addressed but not fully resolved for all contexts. While the Court held the error here was material because the profile finding fed into the country-information assessment, the separate reasons of Nettle and Gordon JJ reiterate that in legal-unreasonableness cases materiality is bound up in the characterisation of the error itself and that the executive bears the onus of showing that relief would be futile. How that onus operates in future Pt 7AA cases where the IAA gives multiple independent grounds remains to be tested.
Finally, the judgment notes that any systemic problem arising from audio-only recording of in-person interviews is administrative and can be remedied administratively, for example by video-recording. Whether video-recording would eliminate the informational gap entirely and remove any obligation to invite a further interview is not decided, although the plurality and Edelman J express reservations about the compatibility of routine video-recording with the statutory objective of efficient, quick review on the papers. These questions will require careful statutory construction in future litigation.
The Secretary of the Department of Immigration and Border Protection then has a duty to give specified 'review material' to the Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority [s 473CB].
The Authority then has a duty to 'review' the referred decision [s 473CC(1)] and to do so 'by considering the review material' provided to it by the Secretary without accepting or requesting new information and without interviewing the referred applicant [s 473DB(1)]. That requirement for the Authority to conduct the review by considering the review material provided to it by the Secretary is expressly made subject to other provisions within the Part which confer power on the Authority to get [s 473DC] and in specified circumstances to consider [s 473DD] 'new information', being information which was not before the Minister when making the referred decision and which the Authority considers may be relevant." This appeal is concerned with the second and third of those duties. Consistent with the objective of providing a mechanism of limited review that is efficient and quick, the primary or default position is that the Authority has a duty to "review" the referred decision "by considering the review material" provided to it by the Secretary, without accepting or requesting new information and without interviewing the referred applicant. Under the scheme, the Authority is to treat the review material provided to it by the Secretary as if it were complete. Consistent with that scheme, s 473CB(1)(a) expressly provides that the review material must include a statement that sets out the findings of fact made by the decision-maker, refers to the evidence on which those findings were based and gives the reasons for the decision. It recognises that the review material will record findings made on the evidence and, of course, where the referred applicant is interviewed by the decision-maker, will include any findings based on what occurred at that interview. Thus, the review material will, to the extent necessary for the findings made by the delegate, address demeanour. And that is what the delegate did in this matter. After setting out the evidence, the delegate set out one of her findings - that the appellant's claims were plausible and generally consistent with country information. As Pt 7AA and, in particular, s 473CB(1) requires, the Authority therefore had before it the material to enable it to undertake a de novo merits review of the delegate's decision. There was no informational gap. The difficulty arose after the decision of the delegate was referred to the Authority. As explained, the Authority listened to the audio recording of the interview conducted in person between the appellant and the delegate who made the referred decision. Contrary to the findings of the delegate that the appellant's claims were plausible, the Authority made findings, among others, that the appellant's evidence in that interview was "generally lacking in detail", the appellant "appear[ing] unable to expand in any detail on a number of his written claims and at times sound[ing] vague and hesitant". The Authority's conclusion that it was not satisfied that the appellant would face a real chance of serious harm if he were returned to Sri Lanka was based, in part, on the appellant's "personal circumstances", which, of course, included the Authority's assessment of the appellant in the interview. In affirming a fast track reviewable decision, the Authority is entitled to reject one or more of the delegate's findings based on demeanour if they are glaringly improbable, or for some other sufficient and identified reason. However, the Authority will act unreasonably if, without sufficient reason, it rejects an account given by the referred applicant in an interview conducted in person between the referred applicant and the delegate, and which the delegate accepts in making the referred decision. And that is what the Authority did in this matter. It rejected the delegate's finding that the appellant's claims were plausible (which was based, at least in part, on the appellant's demeanour), not on the basis of the review material but on its own assessment of the appellant's demeanour from an audio recording of that interview and without providing any sufficient reason to depart from, or to reject, that review material. Absent such an analysis and an explication of the reasons for reaching a different conclusion, the Authority was bound to accept those findings of the delegate. Put in different terms, contrary to s 473DB(1), the Authority reviewed the decision by rejecting, or putting to one side, a central part of the review material that had been provided to it and substituting its own findings without any basis for doing so. The decision of the Authority was unreasonable. It is then necessary to address the contention that the appellant's demeanour was "new information" within the meaning of s 473DC. In Plaintiff M174/2016 v Minister for Immigration and Border Protection, Gageler, Keane and Nettle JJ explained the approach to new information as one of a "primary rule" (of review on the papers) with "exceptions". To be new information, among other things, the referred applicant's demeanour must have not been "before the Minister when the Minister made the decision under section 65". Here, the appellant's demeanour was before the delegate and formed the basis, at least in part, of the delegate's findings. Indeed, that is the nature of the appellant's complaint. The appellant's demeanour was not and could not be "new information". Next, the contention that if the appellant was asked to attend an interview with the Authority, the appellant's demeanour before the Authority would be "new information" because that demeanour was not and could not have been provided to the Minister, should not be accepted. It is contrary to the legislative scheme. As explained, subject to the exceptions in Pt 7AA, the Authority must review a fast track reviewable decision referred to it by considering the review material provided to it under s 473CB without accepting or requesting new information and without interviewing the referred applicant. In conducting the review, the Authority faced a choice - accept the delegate's findings based on demeanour or, if those findings were glaringly improbable or some other sufficient reason could be identified, set them aside. That conclusion is consistent with what underpins Pt 7AA, namely a review on the papers where a referred applicant has had ample opportunity to present their claims and supporting evidence to the Minister. The Authority's obligation is to "consider" the review material provided to it by the Secretary and to "examine the review material ... in order ... to form and act on its own assessment of the relevance of that material to the review of the referred decision". In order to form and act on its own assessment of the relevance of the review material to its review, the Authority may not, without sufficient reason, reject that part or those parts of the review material based on demeanour. The Authority may consider any new information where it is satisfied there are exceptional circumstances, and the information was not and could not have been provided to the Minister before the Minister made their decision or was credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims. Not only was the appellant's demeanour before the delegate but it was credible personal information which, at that time, was known and affected the Minister's consideration of his claims. The scheme does not permit rejection of those findings based, at least in part, on demeanour absent a sufficient reason. None was identified. It was suggested that the Authority could and should have interviewed the appellant and made an assessment of his credibility and demeanour. That step is neither permitted nor required by s 473DC. The proposition is that because the review material given to the Authority did not provide a sufficient reason to set aside the delegate's conclusion about credibility, the Authority not only could have but should have sought to obtain "new information" on which to do so. That is not what Pt 7AA provides. Section 473DC(1) relevantly identifies what is new information as information not before the delegate. The appellant's account of what had happened to him was before the delegate. Section 473DC(3) permits the Authority to get new information by conducting a new interview. But having the appellant repeat his account of what had happened to him in an interview with the Authority is not to get new information. And it does not become new information by observing that only new questions might be asked of the appellant about his account. The review by the Authority prescribed by Pt 7AA is an important mechanism for ensuring that decisions by delegates to refuse protection visas are made on proper bases. As explained, in its review, on the papers, the Authority "examine[s] the review material ... in order ... to form and act on its own assessment of the relevance of that material to the review of the referred decision". That assessment includes its review of findings based on demeanour. Those findings may favour an applicant; they may not favour an applicant. But the Authority reviews all findings based on demeanour and makes its own assessment of the relevance of that material. And when, as part of that assessment, the Authority forms a view that a finding based on demeanour must be set aside because it is glaringly improbable, or for some other sufficient reason, then the Authority must identify that finding and provide the reason or reasons for setting it aside. If no sufficient reason can be identified by the Authority, then the Authority is bound to accept that finding of the delegate. The alternative of video-recording the interview by a delegate or another person defeats the stated statutory purpose of Pt 7AA. Not only that, but video‑recording the interview (itself an additional cost in both recording and then producing a copy of the recording for it to be provided to the Authority as part of the review material and within the time limits prescribed by Pt 7AA) brings with it further and no doubt novel questions about the use of the recording when the Authority conducts its review and, of course separately, then by the courts in any application for judicial review. That leaves one final matter - the Minister's alternative contention that the Authority's error was immaterial, and therefore not a jurisdictional error. In Minister for Immigration and Border Protection v SZMTA, Nettle J and I explained why "materiality of error" should not be a criterion of jurisdictional error. One particular difficulty presented by materiality of error as a criterion of jurisdictional error is if the person challenging the decision has the burden of proving that the error could realistically have resulted in a different decision. To describe an error as "harmless", or to ask whether that error was "material", is to admit that there has, in fact, been an error. This reflects the fact that, generally speaking, the law is concerned first to find whether a defendant has breached his or her duty before going on to consider the consequences of that default. This is no less true when the defendant is the executive, and is alleged to have breached some duty, statutory or otherwise. It reflects the orthodox approach to jurisdictional error, according to which the question of error is determined before one turns to the question of whether relief should be withheld in the discretion of the court. Once error has been established, the question is what is the judicial response to that error. This in turn raises questions as to the proper role of the courts in reviewing executive action. These questions relate to the authority of courts in our system of government and the judicial techniques by which those courts undertake their work. In undertaking their work in this area of law, courts are concerned with the legal limits of executive power. The answers given by courts must therefore take account of a number of cardinal principles of constitutional law. These include the nature of judicial power (including its focus on deciding controversies between persons or between persons and government), the separation of that power from legislative and executive powers, and the rule of law. When considering jurisdictional error, all of these principles must be addressed in the context of a particular statute. It is therefore also important to remember that the words of the statute are supreme. No court has the power to change those words. The statute sets the playing field and the rules. Those rules apply to everybody: they apply to all people within Australia, including administrative decision-makers and the judiciary. The statute is prospective. That is, it sets those rules in advance. Those rules tell decision-makers, for example, that they must act reasonably and accord procedural fairness. "The legal standard of reasonableness must be the standard indicated by the true construction of the statute". The statute ensures that decision‑makers know what is required of them when carrying out their tasks. If those rules - such as reasonableness and procedural fairness - are to be qualified or denied, the legislature must express that intention in clear language. If a decision-maker breaches the rules set down by the legislature, the decision-maker commits an error. A decision-maker has breached the rules and committed an error, or the decision‑maker has not breached the rules and has not committed an error. The situation is a "binary" one. Thus, as McHugh J said in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs: "If the requirement to give written particulars is mandatory, then failure to comply means that the [decision-maker] has not discharged its statutory function. There can be no 'partial compliance' with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not." This emphasises the importance of the point made earlier: the statute sets the rules and those rules are known in advance. Their content is fixed. That content is not "ambulatory". If that was not the case, a decision-maker would be unable to know what rules to abide by. Similarly, a person who is subject to the exercise of power by that decision-maker could not know whether they had been treated in accordance with the law. It is, of course, true that the circumstances of individuals vary. But this does not mean that rules shift with individuals' circumstances. Judicial power is concerned with whether the rules set down by the statute were met. Generally, this manifests as a concern with the manner in which power conferred by the statute was exercised. That inquiry is, logically, concerned with the time at which the power was exercised and, in cases of legal unreasonableness, also the result. The inquiry therefore has a temporal element. These two principles - that statutes fix rules in advance and that error is determined at the time of the exercise of power by a decision-maker - have an important consequence. Together with the constitutional principles discussed earlier, they have the consequence that judicial power does not permit a court to inquire, in hindsight, whether an error was "material", thereby modifying the statute. To make a finding that no error was committed because that error was not material is to change the statutory obligation. Consider a statutory obligation to accord procedural fairness. If a decision-maker does not accord procedural fairness in the exercise of the relevant power, they have breached that obligation. To then inquire whether that breach was "material" is to say (contrary to the previous sentence) that the obligation may or may not have been breached, depending on whether compliance with the obligation could have resulted in a different outcome. Two things may immediately be seen from this example. First, the obligation to accord procedural fairness has been changed. It is no longer an obligation to accord procedural fairness in exercise of the statutory power. Rather, the new obligation on the decision‑maker is to accord procedural fairness if (and only if) to do so would make a difference to the ultimate decision. The guarantee of procedural fairness is removed. Second, the new obligation is inherently uncertain. The obligation on a decision-maker is not set in advance by the statute. Rather, its content now depends upon the particular circumstances of the decision at issue. It is difficult (if not impossible) for a decision-maker to know in advance what level of procedural fairness might have made a difference. The decision‑maker needs to know in advance how to act in accordance with the law, but a materiality analysis is necessarily backwards-looking. Nor is the criterion of materiality any easier for the judiciary to apply: the criterion is akin to, or feels like, a form of merits review. A qualification of materiality is also contrary to the principle expressed earlier: if obligations of procedural fairness are to be limited or qualified, that limit or qualification must be expressed in clear words by the legislature. Limits or qualifications cannot be imposed by way of "qualitative judgments" made by courts. If there is jurisdictional error, it is for the executive, not the individual affected by the exercise of the power, to establish that, notwithstanding the error, relief should be denied in a given case because that relief would be futile. The presumption that relief will go reflects the primacy of the statutory rules and the separation of powers by which courts respect those rules. It also reflects the fact that judicial power is, and must be, exercised in a way which seeks to ensure that the values that underpin our democracy will be upheld. Those values include the idea that power will not be exercised against an individual in a way that is contrary to law. At a more human level, such exercises of power must respect the integrity and the dignity of individuals who are subject to that power. These principles are consistent with the proper understanding of judicial power in this context. As Allsop CJ has said, judicial power seeks to ensure that executive power which extends beyond the authority conferred on the executive is controlled. There are, as his Honour described, "deep Constitutional relationships between Parliament through statute, the Executive through statutory and inhering executive authority and Courts through the exercise of judicial power and the common law". Those relationships are, as has been said, concerned in this context with ensuring that executive power remains within the bounds set by the legislature. To require an individual to show that executive power - public power - would have been exercised differently if preconditions on the exercise of that power had been met is to fail to understand these relationships and the role of judicial power. It places the onus on an individual to show why public power should be re‑exercised, rather than protecting that individual from exercises of public power which are contrary to the law. And, it must be observed, at least in some cases it places the onus on an individual to show why public power should be re‑exercised, without the necessary facts, or the ability to obtain the necessary facts. This is not to say that every instance of jurisdictional error results in relief. As Allsop CJ has also said, it is necessary to "provide a realistic and appropriate answer" to questions about the legality of exercises of executive power. Consistent with the principles stated above, that answer must start by recognising that the executive has transgressed its legal limits. That is, it is necessary first to recognise that an error has been made. Subsequent to that finding, relief may be denied in those cases where the executive can show that the relief would be futile, in the sense that the error could not possibly have made a difference. A court will not award relief when it is futile to do so. That is as true in cases of jurisdictional error, including on the ground of legal unreasonableness, as in any other case. And in public law, the onus is on the executive to show that this is an appropriate step in a given case. That onus cannot rest with an individual who is challenging a decision of the executive. For those reasons, the appeal should be allowed. I agree with the orders proposed by Nettle J.
EDELMAN J. Introduction and agreement with other reasons I have had the considerable benefit of reading in draft the reasons of Nettle J and Gordon J. Like Gordon J, I adopt the facts and the procedural history set out in the reasons of Nettle J. I agree with Nettle J and Gordon J that the Immigration Assessment Authority acted unreasonably by departing in its reasoning from the delegate's finding that the appellant's claims were plausible. As Nettle J explains, it was a legal error for the Authority, which did not have the opportunity to assess the demeanour of the appellant including the demonstration of his scarring, to depart from the delegate's assessment of the appellant's credibility. There was no legal basis to depart from the findings of the delegate, which were not contrary to incontrovertible facts or uncontested testimony, or glaringly improbable, or contrary to compelling inferences, or otherwise erroneous. I also agree with Nettle J that care sometimes needs to be taken with expressions like "hearing de novo", a hearing "from the beginning", which is not an expression that appears in the Migration Act 1958 (Cth). As his Honour explains, the nature of the review conducted by the Authority is a matter of statutory interpretation. Effect must be given to the intention of Parliament rather than superimposing upon the statute a conception of what a hearing de novo might require. The description of the review as "de novo" is only a loose description which should not distract from what is required by the scheme of Pt 7AA of the Migration Act. That Part contemplates only a "limited review". Relevantly to this appeal, central features that establish the limited nature of the review include: (i) the proscription upon considering "new information" unless various conditions are satisfied including that there are "exceptional circumstances"; (ii) the express statutory assumption that the Authority's review will generally be conducted "on the papers" without interviewing the referred applicant and without a hearing; and (iii) the inclusion in the review material of the delegate's reasons for decision so that the Authority must not undertake its consideration without taking into account the views of the delegate. Since this is one of the final decisions of Nettle J, I wish also to express my gratitude for his customary comprehensive consideration, his lucid expression, and, as always, his intellectual rigour. I seek to add observations to his Honour's reasons and the reasons of Gordon J on only two points. A referred applicant's re-presentation of old evidence is not "new information" The context in which the issue on this appeal arises is a situation that is likely to be common. Upon reviewing the papers, the Authority has doubts about the correctness of a step in the reasoning process of the delegate, which depended in part upon the delegate's usual assessment of the applicant in an interview. The review material before it is not so plain that the Authority can reach a different conclusion on that step without having had the same benefit of assessing the referred applicant's demeanour. One submission of the appellant was that, in such circumstances, the Authority's failure to exercise its power under s 473DC to invite the referred applicant to an interview would be legally unreasonable. The submission was that the Authority would be required to invite the referred applicant to "give" evidence concerning the same "facts, subjects or events" that were the subject of the delegate's questions because the evidence given by the referred applicant would be given with a demeanour which would, by definition, be "new". This submission is contrary to both the terms and the purpose of Pt 7AA. As to the terms of Pt 7AA, the appellant's submission that a referred applicant can "give" new information simply by re‑presenting old evidence is, at the very least, a strain of the English language. The natural and ordinary meaning of a referred applicant "giving" information is that the referred applicant provides facts or refers to circumstances "relating to material or documentation of an evidentiary nature". A referred applicant does not "give" their demeanour. Rather, the demeanour of, or manner in which the evidence is given by, a referred applicant is a matter "on which the value of [the] evidence depends". Another major obstacle for the appellant's submission which derives from the terms of Pt 7AA is that the Authority can only consider the "new information" of the referred applicant's demeanour if the circumstances are "exceptional". Yet common circumstances, as the circumstances of this appeal might reasonably be thought to be, are usually the antithesis of exceptional circumstances: a joint judgment of this Court recently said of s 473DD that to be exceptional a circumstance "cannot be one that is regularly, or routinely, or normally encountered". Hence, if the appellant's submission were accepted then it would be legally unreasonable for the Authority not to interview a referred applicant in order to consider demeanour but any "new information" obtained from assessing the demeanour could not be considered by the Authority. An acceptance of this submission by the appellant would also undermine the scheme of Pt 7AA. When that Part was introduced, the then Minister, Mr Morrison, described one of its purposes as resolving "around 30,000" outstanding claims to asylum. On the appellant's submission, the Authority might often be required to ask itself whether its doubts about any conclusion of the delegate based on demeanour require it to give the referred applicant an interview. There might be many instances in which an interview is required. Further, if this submission were correct, the terms of s 473DE could require the Authority to consider giving a second interview to the referred applicant. Without more, the effect of s 473DE would be that if, in the course of deliberating, the Authority considered that the referred applicant's demeanour would be the reason, or part of the reason, for affirming the Minister's or delegate's decision then the Authority could also be required, amongst other things, to invite the referred applicant to give comments on its assessment of the referred applicant's demeanour in writing or at yet another interview. It is highly unlikely that Parliament, which expressly stated that the Authority "does not hold hearings", could have intended that, in circumstances likely to be common, one or two interviews might be required to be held. In the Explanatory Memorandum to the Bill which introduced Pt 7AA it was said: "A fast track review applicant has had ample opportunities to present their claims and supporting evidence to justify their request to international protection throughout the decision-making process and before a primary decision is made on their application." The appellant's submission, if accepted, would conflict with the express statutory assumption that the Authority's limited review will generally be on the papers without interviewing the referred applicant. It would negate Parliament's description of the Authority as a body that "does not hold hearings". It would subvert the express goal that the Authority "is required to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review)". Many reviews would not be limited. They would not be efficient. And they would not be quick. Parliament should not be taken to have contemplated the possibility that such stultification of its statutory goals might be avoided by the introduction of new, innovative administrative techniques such as video-recording interviews between an applicant and an "officer" other than the delegate who makes the decision on behalf of the Minister. Such a new practice for fast track applicants might be expected to increase the work of the Department substantially since it would require both a video-recorded interview by an officer and a viewing of that interview by the delegate, who is required to have regard to that information. And if, contrary to the view expressed above, a "limited review" required the Authority to be in the same position to assess credibility as the delegate, the video-recording of interviews before an officer would impose a new burden upon the Authority to scrutinise the demeanour of a referred applicant in most or all of the video-recorded interviews where the Authority has doubts about findings dependent upon the demeanour of the referred applicant. Although this scrutiny of a video-recording would be less time-consuming for the Authority than a fresh interview, it could still imperil the statutory goals of efficiency and speed, potentially without additional benefit, when compared with a process of the Authority making its independent assessment upon the basis of acceptance of demeanour findings by the delegate from which there is no legal basis to depart. For these reasons, if the expression "de novo" were to be understood in literal terms as meaning a hearing entirely from the beginning then, as Nettle J explains, the review is not "de novo". It is a "limited" review. One way in which it is limited is that evidence that has already been presented before a delegate does not become "new information" simply by being re-presented to the Authority. Evidence which the delegate has heard cannot be reheard by the Authority in circumstances including the mere possibility that the referred applicant might give the evidence with a different expression. Just as the Authority cannot get, as "new information", a fresh presentation of documents, such as country information, obtained by the delegate and relied upon in making the decision under s 65, so too the Authority cannot get, as "new information", a fresh presentation of oral evidence that was before the delegate and relied upon in making the decision under s 65. In each case, the Authority is required to consider the findings made by the delegate by a review that is based upon, and which will usually refer to, that evidence. Those findings can be rejected by the Authority unless, in the process of doing so on the papers, such reasoning would be legally unreasonable. Unreasonableness in the process of decision-making There was no suggestion on this appeal that the ultimate outcome reached by the Authority, that the decision of the delegate should be affirmed, was legally unreasonable in the sense that it was not an outcome that was reasonably open within "an area of decisional freedom". The issue was instead whether the process of reasoning deployed by the Authority, which unlike that of the delegate did not involve alternative paths of reasoning to the outcome, could be characterised as legally unreasonable. To adopt the distinction made by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v Singh, the legal unreasonableness in issue on this appeal was process focused rather than "outcome focused". During the oral hearing of this appeal the Minister accepted that "the ultimate decision can contain jurisdictional error by reason of a legally unreasonable exercise of a step along the way". The Minister then conceded that, subject to the issue of materiality (which, depending upon the location of the onus, might better be expressed as immateriality), if "a delegate makes a decision that is substantially based on demeanour then the Authority will need to have an independent evidentiary basis to depart from that decision" and that it would be legally unreasonable to reach a different view "without forming its own view about demeanour". The concession of the Minister concerning jurisdictional error based on unreasonableness in the process of decision-making could not be accepted if it were to be understood as based upon a ground of legal unreasonableness which encompassed the process of decision-making generally, unmoored from the particular statutory duties, functions, and powers that govern that process. The recognition of such a new ground of review based upon legal unreasonableness in the abstract process of decision‑making would be a very large step. At worst, such a step could be destructive of a distinction between the legality of the exercise of administrative power and the "merits" of that exercise. The "merits" of an exercise of administrative power include the lawful exercise of power which involves "administrative injustice" or mere "error". At best, such a step would go beyond the usual, often unacknowledged, "ebb and flow" by which the judiciary has eroded this distinction. A more orthodox conception of judicial review for legal unreasonableness in the process of decision-making recognises an implication of a duty of legal reasonableness only in the performance or exercise of a statutory duty, function, or power. Hence, decisions of this Court have recognised an implication of a requirement for legal reasonableness in the performance or exercise of specific statutory duties, functions, or powers such as the power to adjourn a review hearing or a power for the Authority to invite a person to give new information in writing or at an interview. And in Minister for Immigration and Citizenship v SZMDS, in taking an approach that was described as focusing upon legal unreasonableness in "the process of reasoning from facts and inferences" rather than in the outcome, a particular duty upon which Gummow A‑CJ and Kiefel J focused was the obligation of the Refugee Review Tribunal under s 430(1) of the Migration Act to set out findings on material questions of fact. A passage in the decision of the Supreme Court of Canada in Dunsmuir v New Brunswick, to which reference is made in the reasons of Kiefel CJ, Bell, Gageler and Keane JJ, might, on one view, call into doubt whether a duty to give reasons can be the subject of a requirement of legal reasonableness independently of whether the outcome is legally reasonable. That passage was later considered by the Supreme Court in Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), which explained that "the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes". Such a conception could not justify the Minister's concession of legal unreasonableness by the Authority in reaching its own decision about demeanour because it was not suggested that the ultimate outcome reached by the Authority fell outside the "range of possible, acceptable outcomes". More recently, however, the Supreme Court of Canada has taken a broader view of the decision in Dunsmuir and the role that reasons can play in judicial review for legal unreasonableness. In Canada (Minister of Citizenship and Immigration) v Vavilov seven judges of that Court held that it was "mistaken" to understand the Newfoundland and Labrador Nurses' Union decision as confining review for legal unreasonableness only to the outcome. Hence, a decision with "formal reasons that fail to justify [it]" is invalid "[e]ven if the outcome of the decision could be reasonable under different circumstances" because "it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome". Of course, where there is no specific duty, function, or power which is said to have been unreasonably omitted or exercised, including where there is no duty to give reasons and none are given, then the focus of reasonableness can only be upon the ultimate outcome. The Minister's concession on this appeal can be justified in light of the duty upon the Authority to set out its reasons for its decision, contained in s 473EA(1)(b) of the Migration Act. For the reasons above, that duty can be understood as attracting the implied duty of reasonableness in its exercise. As Nettle J explains, the step in the Authority's reasoning process involving the rejection of the demeanour assessment by the delegate was a step that was essential in the single reasoning process leading to the Authority's conclusion. Although this was not a case where an essential step in the reasoning process was unexpressed, the essential step that was expressed involved substantial error. For these reasons, the Minister's concession should be accepted. It is necessary to emphasise that there was no submission on this appeal that the Authority's error in its reasoning process, whilst significant, was insufficient to justify a conclusion of legal unreasonableness in the performance of the duty contained in s 473EA(1)(b). It suffices to say that factors which might point to the threshold for legal unreasonableness in the performance of this duty to give reasons being high, despite the importance of the issue being decided, include: the historical background against which Parliament legislated, the statutory context emphasising the limited nature of the review and the need for efficiency and speed, and authorities which, using strong adjectives, had described reasons as leading to jurisdictional error where the reasons fail to provide an "intelligible justification" for the decision or are "irrational or illogical irrespective of whether the same conclusion could be reached by a process of reasoning which did not suffer from the same defect". Conclusion The appeal should be allowed and orders made as proposed by Nettle J.
ABT17
Minister for Immigration and Border Protection
Appeal allowed; orders of the Federal Court set aside and, in their place, appeal to that Court allowed with orders setting aside Federal Circuit Court orders, quashing the IAA decision of 16 December 2016, remitting the matter to the IAA to be determined according to law, and ordering costs against the first respondent in the Federal Circuit Court, Federal Court and High Court.