3.6.3 Legal unreasonableness: relevant principles
64 It was common ground that the IAA is not required to notify a referred applicant that it is considering taking a different view of the evidence before the delegate under the statutory regime created by Part 7AA for fast track reviews. As the Full Court held in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 (DGZ16) the starting point is Part 7AA which provides that:
(1) subject to Part 7AA, the IAA's obligation is to review a fast track reviewable decision by considering the review material without accepting or requesting new information and without interviewing the referred applicant (s 473DB(1)); and
(2) Div 3 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA (s 473DA).
65 As a consequence, the Court held that:
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.
66 Applying this approach, the Court held in DGZ16 that the appeal was one where the IAA had reassessed the material considered by the delegate (at [71]), and distinguished the decision in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 (CRY16), holding that:
70. It is to be noted that the present case is not one where the Authority has decided a point which was not the point decided by the delegate, but rather one where additional information is necessary in order to complete the review. We refer to Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, where the Authority affirmed the decision of the delegate to refuse to grant the SHEV but on the different basis of relocation which the delegate had not addressed. Thus there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s 473DC(3).
67 In CRY16, there was no challenge to the primary judge's finding that the IAA had not considered whether or not to exercise its powers under ss 473DC and 473DD (CRY16 at [75]). The Full Court held that it was legally unreasonable in the circumstances of that case for the IAA to fail to consider exercising its discretion under those provisions to get documents or information from the visa applicant with respect to the question of relocation for the following reasons:
82. … The legislature is to be taken to intend that the Authority's statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority's failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of "practicable", in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.
68 This decision was followed by the Full Court in Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 536 at [79]-[81] (the Court) and in DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134 (DPI17).
69 In DPI17, Griffiths and Stewart JJ (with whose reasons Mortimer J relevantly agreed at [55]) emphasised a number of points which guide the application of the ground of legal unreasonableness in this context:
37. … First, legal unreasonableness is "invariably fact dependent and requires evaluation of the evidence" … 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 …. 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" …. 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.
38. In CCQ17 at [51], Thawley J helpfully identified the following three essential steps in determining whether an established failure to consider exercising a discretionary power was legally unreasonable:
(1) identify the failure with precision;
(2) examine the terms, scope and purpose of the statutory power which the decision-maker failed to consider; and
(3) 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.
39 Each of those three steps is important but it is the third of those steps which highlights the fact that a mere failure to consider the exercise of the power under s 473DC is insufficient per se to give rise to jurisdictional error.
(emphasis added; citations omitted)
70 In DPI17, the applicant for a protection visa had claimed among other things to have been sexually assaulted by Sri Lankan officials. Although the visa applicant had given inconsistent accounts as to the details of the sexual assaults, the delegate nonetheless accepted that they had occurred and confirmed during the interview that she would place weight on these inconsistencies. The IAA affirmed the delegate's decision. In the course of its reasons, the IAA made adverse credit findings as to the visa applicant's sexual assault claims but did not consider whether or not to exercise its powers under s 473DC to obtain new information from the visa applicant about the assaults before making its findings. The Full Court held that the IAA's failure to consider whether or not to exercise its power under s 473DC in respect of the issue of the sexual assaults and the relevant inconsistencies was legally unreasonable in the particular circumstances of the case: DPI17 at [45]-[47] (Griffiths and Steward JJ) (Mortimer J agreeing at [55] and [126]). While appreciating that each case must turn on its particular facts, nonetheless the reasons of the Full Court for so holding is illustrative of the circumstances in which legal unreasonableness may be established in this context. Specifically, Griffiths and Steward JJ held that:
46 As to the sexual assaults:
(1) It would have been evident to the IAA from the extracts from the transcript of the appellant's interview with the delegate (see [14] above) that the delegate's acceptance of the appellant's claim that he had been tortured and sexually assaulted by Sri Lankan officials on at least two occasions (as stated in the decision record), was based primarily on the delegate's assessment of the appellant's demeanour and credibility when this matter was discussed in the course of the interview with the delegate.
(2) The IAA must have been aware of the delegate's positive assessment of the appellant's demeanour because the IAA member stated at [20] of his reasons for decision that he had listened to the recording of that interview.
(3) In those circumstances, if the IAA was minded to come to a different determination on the central question whether it was satisfied that the sexual assaults had occurred, unless there was available to the IAA a sufficient independent evidentiary basis to support such a determination without the IAA itself inviting the appellant to attend for an interview and conduct its own assessment of his demeanour, it was legally unreasonable for the IAA to fail to consider whether or not it should exercise its powers under s 473DC.
(4) As the plurality observed in Fox v Percy [2003] HCA 22; 214 CLR 118 at [30]-[31], demeanour is not the only aspect of a witness's evidence which may lead to credibility findings. Such findings might result from inferences drawn from probative evidence or material. This is not the case here. That is because part of the IAA's reasons for its adverse finding on the appellant's credibility, as summarised in [35] of its reasons for decision, was based on the cumulative effect of inconsistencies and implausibilities in the appellant's evidence, as set out by the IAA in [22] to [34] inclusively. Those inconsistencies, together with the other matters referred to in [35] of the IAA's decision record were viewed as undermining the appellant's credibility. That adverse finding then flowed through to the IAA's rejection in [36] of its decision record of the appellant's claims to have been the victim of sexual assault.
(5) For reasons which will shortly be stated, some of the inconsistencies as found by the IAA were at odds with the delegate's separate statement to the appellant and his representative that those particular inconsistencies were, in effect, inconsequential. Consistently with what they were told by the delegate at the end of the interview, the delegate placed no weight on them. As will shortly be explained, in the particular circumstances here, while it was open to the IAA to come to a different view on the significance of those and other inconsistencies, in the case of the inconsistencies which the delegate viewed as inconsequential (the relevant inconsistencies), it was legally unreasonable for the IAA to fail to consider whether or not to exercise its power under s 473DC in relation to those relevant inconsistencies.
47 As to the relevant inconsistencies:
(1) Although it is true that, during the course of the appellant's interview with the delegate, the issue arose of inconsistencies between what was stated in the statutory declaration dated 23 September 2013 and other evidence given by the appellant, the delegate explicitly stated that the "discrepancies aren't major" and she would not put "a lot of weight on those discrepancies" because, on the whole, she viewed the appellant's evidence as being consistent.
(2) Presumably in reliance upon those statements, the appellant did not address the inconsistencies in his post-interview submissions. According to what the delegate said at the end of the interview, she viewed the relevant inconsistencies as inconsequential and they did not figure in the delegate's reasons for refusing to grant the appellant a SHEV.
(3) It is also relevant that the transcript of interview indicates that the appellant's migration agent raised with the delegate the issue of inconsistencies and indicated to the delegate that these inconsistencies may be attributable to the fact that the agent did not have access to all the appellant's prior statements, potentially leading to some misunderstanding.
(4) It was open to the IAA to take a different view as to the significance of the relevant inconsistencies (bearing in mind the nature of the IAA's review function), but in view of the matters described immediately above, the IAA was obliged to consider and determine whether or not it should exercise its discretion under s 473DC and invite the appellant to provide any "new information" relating to the relevant inconsistencies, whether at an interview or otherwise. There is nothing to suggest that the IAA turned its mind to this requirement. In the particular circumstances, it was legally unreasonable for it not to do so.