What happened
The appellant, a Tamil citizen of Sri Lanka, arrived in Australia by boat on 13 October 2012 as an unauthorised maritime arrival. On 31 March 2016 he applied for a Safe Haven Enterprise (Class XE) visa. His claims centred on having been abducted by the Karuna Group in 2008, spending 17 months in hiding, and fearing harm from the Karuna Group, the Sri Lankan Army, the Criminal Investigation Department and because of his Tamil ethnicity and imputed LTTE support. The delegate refused the application. The delegate's reasons referred, in a footnote, to an "Offshore Humanitarian Visa Assessment File" relating to the appellant's brother, but placed no apparent weight on any omission within that file.
The Secretary gave the Immigration Assessment Authority (the Authority) the review material required by s 473CB, which included the delegate's decision record. A separate delegate issued a certificate dated 30 September 2016 under s 473GB(2)(a). The certificate stated that s 473GB applied to a document or information titled "GAN095 - Claims from Offshore File of Family Member [appellant's brother] contained in PDF Portfolio". The certificate recorded the view that the information had been given in confidence and should not be disclosed.
On 3 April 2017 the Authority affirmed the delegate's refusal. At paragraph [18] the Authority said it found it "significant" that the brother's protection claims summary made "no mention of the applicant's own abduction by the Karuna Group in 2008, which I consider would at least have had some relevance to his brother's own claims. I have given some weight to this omission." This paragraph, together with the cumulative credibility analysis at [26], formed an important strand in the Authority's conclusion that the appellant had fabricated his claims of personal interest to the various Sri Lankan groups. The Authority accepted that the appellant's family had faced difficulties but was not satisfied the appellant himself had the requisite profile.
The existence of the certificate and the brother's summary were not disclosed to the appellant at any time before the Authority published its reasons. The appellant commenced judicial review in the Federal Circuit Court, arguing breach of natural justice under s 473DA and legal unreasonableness. The primary judge dismissed the application in December 2017, holding at [33] that it was open to the Authority not to exercise any discretion to disclose and that the adverse findings were not illogical, irrational or unreasonable.
The appellant appealed to the Full Federal Court on the single ground that the primary judge erred in failing to find legal unreasonableness. By the appeal hearing the appellant advanced two alternative paths: first, that the Authority's assumption that the brother would have known of the 2008 abduction was without evidentiary foundation and therefore unreasonable; second, that the Authority either failed to consider exercising the s 473GB(3)(b) discretion to disclose the material or exercised that discretion unreasonably by refusing disclosure, given the seriousness of a fabrication finding and the limited material available. The Full Court (Flick, Markovic and Banks-Smith JJ) dismissed the appeal on 25 July 2018, ordering the appellant to pay the Minister's costs.
Why the court decided this way
The Full Court began by locating the statutory context. Part 7AA creates a limited "fast track review process" that is "a mechanism designed to result in an automatic review of a fast track reviewable decision" (citing Plaintiff M174 at [15]). Section 473DA(1) declares that Division 3, together with ss 473GA and 473GB, is an exhaustive statement of the natural justice hearing rule. Section 473DB requires the Authority to review on the papers without new information or interview unless the Part otherwise provides. Against that background, s 473GB(3) gives the Authority two discretions once a certificate is received: it "may … have regard to any matter contained in the document, or to the information" and "may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary … disclose any matter contained in the document, or the information, to the referred applicant".
The Court accepted that these discretions are subject to an implied condition of reasonableness (Li at [28]; Plaintiff M174 at [21]; BBS16 at [98]). The Minister conceded as much. However, the Court emphasised that the statutory scheme itself contemplates non-disclosure. Section 473GB(3)(b) is expressed permissively and s 473GB(4) only requires a non-disclosure direction if disclosure in fact occurs. The scheme does not require the referred applicant to be involved in any debate about the certificate's validity or the Secretary's advice.
The Court rejected the proposition that mere use of certified material without disclosure is inherently legally unreasonable (para [37]). It noted that the Authority had in fact had regard to the material (paras [18] and [26] of the Authority's reasons) but that this did not, without more, cross the Li threshold of arbitrariness, capriciousness or abandonment of common sense. The Court distinguished the delegate's apparent non-reliance on the omission, but held that the Authority's different view did not oblige it to give notice (citing DGZ16 at [72], though that case is not extracted in the provided text).
On the question whether the Authority failed to consider the discretion, the Court placed the onus squarely on the appellant (SZGUR at [67]). It held that s 473EA(1), which requires a written statement setting out the decision and reasons, does not require explanation of procedural steps taken during the review. The Court applied the High Court's reasoning in SZGUR about s 430 and confirmed that s 25D of the Acts Interpretation Act 1901 (Cth), although applicable to s 473EA, is satisfied by setting out findings on material questions of fact and the evidence on which they are based; it does not require disclosure of the disposition of a discretion to disclose confidential material. The absence of any mention of the discretion in the Authority's reasons therefore did not support an inference that it was overlooked.
The Court then examined the reasonableness of the inference the Authority drew. The appellant's own evidence was that after escaping he stayed with an aunt five houses from his mother's home and remained in the same village for 17 months while monitoring authorities. He also knew of his brother's later abduction and that the brother had assisted in securing the mother's release in 2012. In that context it was open to the Authority to assume family members would have known of each other's experiences. The omission in the brother's summary was only one of several matters relied upon; the Authority also found the appellant's own evidence vague, noted inconsistencies in his accounts of detention length, and considered it implausible that he would hide so close to the place of abduction when his brother had fled to Colombo. Cumulatively these matters meant the Authority's credibility finding was not legally unreasonable. Consequently neither the use of the material nor the failure to disclose it crossed the high threshold for jurisdictional error.
Before and after state of the law
Before this decision the law was already clear that the discretions in Pt 7AA are subject to an implied reasonableness condition. Plaintiff M174 had held that the powers in Division 3 are so conditioned. BBS16, CRY16 and DZU16 had applied that principle to various powers including, in BBS16, to s 473GB itself. Li supplied the content of reasonableness: a decision is unreasonable if it is arbitrary, capricious or lacks common sense when viewed in the statutory context. The exhaustive statement of natural justice in s 473DA was also settled, as was the proposition that the review is conducted on the papers using the review material provided under s 473CB.
What this judgment clarified was the practical operation of those principles in the specific context of s 473GB certificates. It confirmed that non-disclosure is not per se unreasonable; the statute expressly contemplates it. It settled that an applicant cannot simply point to silence in the Authority's reasons and thereby discharge the onus of proving that the discretion was not considered. By reference to SZGUR and the structure of s 473EA (and s 25D), the Court made plain that procedural decisions during a review need not be separately explained in the written statement required by s 473EA(1). The judgment also illustrated the type of evidentiary foundation that will be required before a court will infer that an assumption drawn from certified material is unreasonable: in this case the appellant's own claims about proximity to family supplied that foundation, making the Authority's inference open.
After the decision the law remains that s 473GB confers a discretion both to have regard to and to disclose certified material, but that discretion must be exercised reasonably. However, practitioners now have a clear statement that the onus of proving failure to consider the discretion or unreasonableness in its exercise lies on the applicant and will not be discharged merely by pointing to the absence of reasons on the point. The statutory context of limited merits review, review on the papers, and express permission for non-disclosure sets a high bar for unreasonableness arguments. The judgment reinforces that credibility findings may legitimately draw on omissions in family members' earlier claims even where those claims are protected by a confidentiality certificate, provided the inference is not arbitrary having regard to the evidence otherwise before the Authority.
Key passages with plain-English translation
Paragraph [28] of the Authority's reasons (quoted at para [11] of the Full Court judgment) contains the critical adverse finding: "Viewed together, his evidence suggests to me that he was not abducted by the Karuna Group or in hiding for seventeen months." The Full Court treated this, together with [18]'s reference to the brother's summary, as the core of the legal unreasonableness complaint. In plain English the Authority decided the appellant was lying because his story did not match what his brother had said earlier and because the appellant's own account of hiding five doors from the abduction site made no sense.
At para [37] the Full Court stated: "The mere fact that the Authority has regard to material the subject of a Certificate without disclosing it to a referred applicant does not of itself comprise a legally unreasonable exercise of power." Translation: just because the reviewer uses secret information does not automatically mean the reviewer broke the law. The statute allows it.
Paragraph [41] records: "The appellant bears the onus of establishing the basis for drawing the inference necessary to make out the alleged jurisdictional error." Translation: it is the visa applicant's job to prove that the Authority must have overlooked the power to show him the secret file; the Minister does not have to prove that the Authority did think about it.
At para [48] the Court concluded that s 25D "does not require the Authority to set out reasons as to an exercise of its discretion, such reasoning not being of itself a finding, evidence or a material fact." Translation: the law that says decision-makers must give reasons does not force them to write a separate essay about every procedural choice they make during the review.
Paragraph [58] states: "it was not arbitrary, capricious or irrational for the Authority to assume that the family members would have some knowledge of their respective experiences … Nor was it arbitrary, capricious or irrational for the Authority to place weight on the absence of any mention by the brother of the appellant's alleged abduction." Translation: given what the appellant himself had said about staying near his family, it was a rational inference that his brother would have known about the abduction and would have mentioned it if it were true.
What fact patterns trigger this precedent
This precedent is triggered where an applicant for fast-track review under Pt 7AA faces a s 473GB certificate over material that was before the delegate, the Authority uses that material to draw an adverse credibility inference, and the applicant argues legal unreasonableness either in the drawing of the inference or in the non-disclosure of the material. The key factual ingredients are: (1) the certified material is a summary or extract from a family member's earlier protection claims that omits a central aspect of the current applicant's claims; (2) the current applicant has given evidence suggesting ongoing family contact or proximity (as the appellant did here by claiming to hide five houses from his mother's home); (3) the Authority treats the omission as one of several cumulative matters going to credibility rather than the sole basis for rejection; and (4) the Authority's reasons are silent on the question of disclosure.
The precedent will not assist an applicant who can point to positive evidence that the family member could not have known the relevant fact, or where the certified material is the only evidence supporting a critical adverse finding, or where the Authority has expressly stated it did not consider disclosure. Because the Court stressed that unreasonableness is "fact dependent" (para [40]), the precedent is engaged whenever the applicant seeks to infer non-consideration of the discretion solely from the absence of any reference in the s 473EA statement.
How later courts have treated it
The judgment itself applies and follows the reasoning in Plaintiff M174, Li, BBS16, CRY16, DZU16, SZGUR and BCQ16. It treats BBS16 as correctly stating that the s 473GB discretion is conditioned by reasonableness and adopts BCQ16's analysis of the content of s 473EA. The Full Court expressly agrees with the approach in BBS16 at [98] (para [29]). It applies SZGUR's logical-structure analysis of reasons obligations to the Pt 7AA context, confirming that procedural discretions need not be mentioned. The judgment therefore stands as an application of the existing reasonableness ground to the specific mechanics of confidentiality certificates in fast-track reviews rather than a radical departure. Subsequent courts reading this decision are directed to examine the particular evidentiary matrix before the Authority and to keep the statutory context of limited review at the forefront. The onus reasoning from SZGUR is reinforced as the default position when an applicant asks a court to infer that a discretion was overlooked simply because the written reasons are silent.
Still-open questions
The judgment leaves open whether there could be a case in which the seriousness of an adverse credibility finding, combined with complete absence of any other material bearing on the same issue, would make non-disclosure unreasonable even though the statute permits it. The Court accepted that "non-disclosure cannot be considered legally unreasonable" only after examining the particular circumstances (para [40]); it did not rule out the possibility that different facts could tip the balance.
It also leaves unanswered the precise interaction between s 25D of the Acts Interpretation Act and s 473EA in cases where the procedural decision is so intertwined with a material finding of fact that it cannot be separated. The Court accepted the Minister's construction that "decision" in s 473EA(1) refers to the review decision itself, but noted that there "may well be circumstances where the lack of any information in the reasons as to the exercise of the discretion supports an inference that the exercise was not considered" (para [50]). The boundaries of those circumstances remain to be worked out.
A further open question is the position where the certificate covers material that the Authority treats as decisive rather than merely corroborative. In this case the brother's summary was one of several matters. The Court did not decide whether sole reliance on undisclosed certified material without any opportunity to comment could ever be reasonable. Finally, the judgment does not explore what advice the Secretary gave under s 473GB(2)(b) or how that advice might affect the reasonableness calculus, because that advice was not before the Court. These edges of the reasonableness obligation in the fast-track confidentiality regime await further litigation.