Failure to hear from the appellant
169 The appellant next complains that, having reached (or perhaps even contemplated reaching) a conclusion that was at odds with what the delegate had concluded - namely, that the appellant had not taught at a school that had received threatening letters and that his claim to that end was untruthful - it was relevantly irrational or illogical for the IAA not to have invited him to give evidence before it decided his application.
170 Although not abandoned, that complaint was not developed beyond assertion. It is easily enough addressed. The process of automatic review for which part 7AA of the Act provides allows for the procurement and consideration of "new information" only in limited circumstances: the Act, ss 473DC and 473DD. There is no doubt that, in exercising (or not exercising) the discretions reposed in it to that end, the IAA must refrain from acting unreasonably, irrationally or illogically: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 ("M174"), 227 [21], 235-236 [49], 242 [71] (Gageler, Keane and Nettle JJ), 245 [86] (Gordon J), 249 [97] (Edelman J); DPI17 v Minister for Home Affairs (2019) 269 FCR 134 ("DPI17"), 147 [36] (Griffiths and Steward JJ), 160 [91] (Mortimer J). There are no fixed categories of circumstances by reference to which a failure to exercise, or consider exercising, the discretions 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: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, 445 [42] (Allsop CJ, Robertson and Mortimer JJ).
171 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 147 [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]).
172 Their Honours then (at 148 [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.
173 The issue, in the present case, is whether the IAA's failure to invite input from the appellant before it proceeded to reject his narrative was beyond what the IAA was free to decide: in other words, whether the only course logically or rationally available to the IAA in the circumstances was to get and/or consider new information from him. 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.
174 I do not consider that the impugned failure here was any of those things. The IAA was obliged to consider the appellant's application for a protection visa afresh and come to its own view as to whether or not the 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).
175 In DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 (Reeves, Robertson and Rangiah JJ), this court observed (at 569 [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.
176 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. DPI17 is a good example. But such a requirement does not arise merely because the IAA is minded to form a view about an issue that diverges from what the delegate decided.
177 The failure of the IAA in this case to invite the appellant to give additional evidence is not reflective of jurisdictional error.