The present case
40 As has been said, the Authority in the present case concluded (correctly) that the information contained in the two statements was not "new information" for the purposes of Pt 7AA of the Act.
41 Whether or not there existed any variance between the information contained in witness statements is a question that may or may not arise in the reasoning process of a decision-maker in considering whether to grant a visa under s 65 of the Act.
42 Here, the Minister's delegate concluded that the criteria in s 36(2)(a) of the Act was not satisfied on a discrete basis that did not turn on an assessment of whether the factual accounts of the appellant and his sister differed. In those circumstances, the absence of any reference to the sister's statement in the delegate's reasons does not of itself support an inference that no consideration was given to the statement at all. I am not satisfied that the delegate failed to comply with s 54 of the Act in a way that could materially have affected the exercise of the power conferred on the delegate by s 65 of the Act.
43 As to s 57 of the Act, it has not been shown that the Minister's delegate was required at law to identify any variance between the statements, or to characterise the variance as "information" that would be a reason or part of the reason to refuse the visa so as to enliven the obligation to invite the appellant's comment. In the course of the delegate's reasoning process, the occasion to seek the appellant's comments in relation to any such variance did not arise: any inconsistency was not, in the course of the delegate's reasoning, a reason or part of the reason for refusing to grant the visa. Accordingly, I am not satisfied that the delegate failed to comply with the condition in s 57 of the Act in the manner alleged.
44 It remains that the two statements came before the Authority without any views having previously been expressed by the delegate about whether there existed a material inconsistency between them and about the consequences of any such inconsistency for the outcome of the visa application. That is the factual and legal context in which the ground for judicial review fell to be considered.
45 In FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29, Bromberg, Davies and O'Bryan JJ summarised the principles against which arguments of the kind advanced by the appellant are to be determined:
59 On a number of occasions, this Court has considered whether a failure by the Authority to seek additional information from a visa applicant when conducting a review is unreasonable in the legal sense. As observed by O'Bryan J in BLS17 v Minister for Immigration and Border Protection [2019] FCA 1079 at [31], each case turns on its own facts but it is possible to distil the following principles from the decisions:
(a) The legislative scheme of review established by Part 7AA (review by the Authority) differs from the legislative scheme of review established by Part 7 (review by the Administrative Appeals Tribunal). In particular, under Part 7, the Administrative Appeals Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments. In those circumstances, procedural fairness requires the Tribunal to inform the applicant of potentially adverse conclusions that are not obvious on the materials and the nature and content of the adverse material: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. However, those principles are not directly applicable to a review under Part 7AA given the different statutory requirements for the review. Part 7AA of the Act is an 'exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews by the Authority': DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 at [69] (DGZ16).
(b) As a general proposition, Part 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate and the Authority is not required to notify the referred applicant that it is considering taking a different view, which may be adverse to the referred applicant, of the material considered by the delegate: DGZ16 at [72]. That is so even if the Authority makes an adverse credibility finding against the referred applicant on the basis of the evidence: DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222 at [74].
(c) However, circumstances may arise in which it would be legally unreasonable for the Authority to make a finding adverse to the applicant without exercising its powers to seek further information from the applicant. An example is afforded by Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 (CRY16). In that case, the Authority had purported to determine the review on the basis that it was reasonable for the applicant to relocate to a particular part of his home country. However, that possibility had never been put to the applicant, before or during the review conducted by the Authority. The Full Court concluded that it was legally unreasonable for the Authority not to seek further information from the applicant in circumstances where the Authority knew that it did not have, but the applicant was likely to have, information on his particular circumstances and the impact upon him of relocation (CRY16 at [82]). CRY16 was a case where additional information (as to the reasonableness of relocation) was 'necessary in order to complete the review': DGZ16 at [70].
(d) Another example is afforded by DPI17 v Minister for Home Affairs [2019] FCAFC 43 (DPI17). In that case, the delegate had made a positive assessment of the applicant's demeanour at the interview and the delegate's acceptance of certain claims by the applicant was based primarily on the delegate's assessment of the appellant's demeanour (DPI17 at [46]). Further, during the course of the delegate's interview with the applicant, the delegate indicated that certain discrepancies in the applicant's evidence were not major and that she would not put a lot of weight on those discrepancies. In reliance upon those statements, the applicant did not address the inconsistencies in his post-interview submissions to the delegate. The Authority reviewed the decision and made various credibility findings adverse to the applicant based on the discrepancies in the evidence. The Full Court found that, in circumstances where the Authority must have been aware of the delegate's positive assessment of the applicant's demeanour in the interview, it was legally unreasonable for the Authority not to consider exercising its power under s 473DC to invite the applicant to give new information when it was minded to give weight to the discrepancies in the applicant's evidence and come to a different conclusion on the claim (at [46] per Griffiths and Steward JJ and [58] per Mortimer J).
46 In my view, the arguments advanced at first instance (and on appeal) conflated the concept of information on the one hand and a reasoning process in relation to the information on the other.
47 In SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 the Court considered the meaning of the word "information" in s 424A of the Act which imposed an obligation to bring to a review applicant's attention potentially adverse information on a review undertaken in accordance with Pt 7 of the Act. The Court said (at [18]):
Thirdly and conversely, if the reason why the tribunal affirmed the decision under review was the tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting 'information' within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute 'information'. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word 'information':
… does not encompass the tribunal's subjective appraisals, thought processes or Determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc …
If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly 'information' be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant 'information' was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
(footnote omitted)
48 I consider the word "information" must bear the same meaning in s 57 of the Act as it does in s 424A and as it does in s 473DC on a limited review conducted in accordance with Pt 7AA of the Act.
49 DPI17 v Minister for Home Affairs (2019) 269 FCR 134 is distinguishable because the delegate in that case had positively reassured the visa applicant that no adverse inference would be drawn from the discrepancies and it had been established, on the facts, that the appellant had relied on that assurance and so had provided no explanation for the discrepancies to the delegate. It was that particular circumstance that rendered the Authority's adverse decision (made in reliance on the same discrepancy) legally unreasonable.
50 Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 is distinguishable because the information upon which the Authority in that case acted was of a different quality, being knowledge of facts acquired by the Authority and on which the appellant had not previously been afforded an opportunity to comment.
51 The circumstances of the present case were such that the Authority embarked upon a different process of reasoning than that embarked upon by the original decision-maker on the basis of the same information that was before the delegate. There is nothing unusual about that occurrence in the context of the limited de novo review for which Pt 7AA of the Act provides. The statutory objective of carrying out a review that is efficient and quick would be undermined if there was an obligation on the part of the Authority to foreshadow to a referred applicant the opinions it may form in relation to the materials, even if they be opinions neither formed nor expressed by the original decision-maker.
52 There was nothing in the course of decision-making before the delegate that prevented or inhibited the appellant from giving an explanation to the delegate about the existence and significance of any differences between the two statements. In providing further submissions to the Authority about the effect of the review materials a referred applicant, proceeding on a proper understanding of the Authority's task, ought to anticipate that the Authority may adopt a different course of reasoning to that adopted by the Minister.
53 To the extent that there were inconsistencies between the two statements, they were capable of identification by the appellant and his advisers at a time before the original decision was made. It was open to the appellant to make submissions to the delegate in connection with the information contained in the statements, including submissions about the extent to which the statements were inconsistent or corroborative. In fact, he availed himself of that opportunity, both before the delegate and before the Authority. In each case, his brief submission was to the effect that his sister's statement supported his claims. It was for the Authority to either accept or reject that submission, irrespective of how the delegate had dealt with the same subject matter. I do not consider the delegate's failure to invite submissions on the existence or extent of the inconsistences involved a want of procedural fairness, whether by reason of a prior breach of s 57 of the Act on the part of the delegate or otherwise. Nor do I consider the course of decision-making before the delegate to have created a circumstance whereby it would be legally unreasonable for the Authority not to consider the exercise of the discretion under s 473DC of the Act to invite comment from the appellant in relation to the subject matter: cf DPI17.
54 The circumstances of the appellant's case differ factually from the scenarios discussed in Plaintiff M174, each of which was concerned with the appellant being afforded an opportunity by the Authority to comment on adverse information not otherwise within his knowledge and upon which he could not reasonably anticipate the Authority rely.
55 If there was a failure by the Authority to consider the exercise of the discretion, the failure would not constitute jurisdictional error on the grounds of legal unreasonableness. Whilst the primary judge did not elaborate on the point, I consider that was what his Honour meant by the remarks extracted at [27] of these reasons. The appeal should be dismissed on that basis.
56 Given my conclusion that a failure to consider the exercise of the discretion under s 473DC would not be legally unreasonable, it is unnecessary to consider whether the primary judge erred in failing to draw the factual inference that no consideration had in fact been given to its exercise.
57 As the primary judge said, the Authority was under no obligation to give written reasons for the exercise or non-exercise of its procedural powers, and the mere absence of any reference in the Authority's reasoning to the existence or exercise of the power cannot, without more, support the factual inference the appellant invited. As the High Court said in BVD17:
39 The appellant's contention before the Full Court that the Authority failed to consider the exercise of the discretion conferred by s 473GB(3)(b) was based solely on an inference sought to be drawn from the fact that the Authority's statement of its reasons for decision contains no reference to the discretion. The Full Court did not err in rejecting that contention.
40 Given that the Authority was under no obligation to give reasons for its exercise or non-exercise of any procedural power, the mere failure of the Authority to mention the discretion conferred by s 473GB(3)(b) cannot support the drawing of an inference that the exercise of the discretion was not considered. … The Authority's reference to one statutory power having been exercised in respect of one category of information cannot be taken to indicate that the Authority failed to consider the exercise of another statutory power in respect of another category of information.
58 Counsel for the appellant acknowledged those general principles, but submitted that there is additional material in the present case capable of supporting an inference that the Authority did not turn its mind to the exercise of the discretion. It was submitted that the Authority expressly concluded that the sister's statement was before the delegate and that the Authority should be understood to have proceeded on the mistaken assumption that the delegate had considered the sister's statement as it was obliged to do under s 54 and s 55 Act. For reasons given earlier, if the Authority made that assumption, it would not have been mistaken.
59 It is significant that although the Authority had no statutory obligation to do so, it did provide written reasons for the exercise of its procedural powers for the purpose of the conduct of the review. It made an analysis of that information that was properly to be regarded as "new information" and that which was not. The reasons disclose an awareness of the necessity to consider the exercise of those discretions that arose for consideration on the facts. In addition, it was plain on the face of the delegate's reasons that no assessment had been made of the differences between the two statements and the Authority may be presumed to have known that. Although the Authority had no legal obligations to give written reasons for the consideration it had given to the exercise of its procedural powers, its reasons disclose an intention to explain in reasonable detail the matters it had considered.
60 In all of the circumstances, I consider the proper inference to be drawn on the facts is that the Authority gave no consideration to affording the appellant the opportunity to comment on the extent or consequences of the inconsistencies between the two statements it had identified. My conclusion in that regard differs from that of the primary judge. However, the failure to consider the exercise of the power did not constitute jurisdictional error for the reasons I have given above.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.