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[2018] FCA 1641
respondent. The appeal be dismissed. The appellant pay the first respondent's costs as agreed or assessed.
1 cited instrument linked from this judgment.
A Sri Lankan Tamil man who came to Australia by boat claimed he would be killed if sent back because of his Tamil ethnicity, past beatings, and links to a murdered activist. The visa delegate refused his application after looking at a 2015 government report on Sri Lanka. The Immigration Assessment Authority looked at a newer 2017 version of the same report, decided the man was not at risk, and upheld the refusal without asking him to comment on the new report. He argued this was unfair and that the Authority should at least have thought about asking him for his views. The Federal Court said the law deliberately limits how much say applicants get in these fast-track reviews. General country reports can be used without always showing them to the applicant. Because the new report did not raise any brand-new issue the delegate had never considered and was used in essentially the same way as the old report, it was not legally unreasonable for the Authority not to have invited comment. The appeal was dismissed.
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The appellant, a Tamil man from the Northern Province of Sri Lanka, arrived in Australia as an unauthorised maritime arrival on 13 October 2012. In April 2016 he applied for a Safe Haven Enterprise (Subclass XE-790) visa. His claims centred on a fear of serious harm from the Sri Lankan Army (SLA), police and the Eelam People's Democratic Party (EPDP). He alleged repeated beatings between 2004 and 2007 because he was suspected of LTTE links, further beatings after the 2006 murder of a neighbour, and adverse attention following the 2010 murder of his friend "Mr S", an activist who had criticised unsustainable sand mining. He claimed this led to him going into hiding and eventually fleeing Sri Lanka.
The delegate refused the visa, finding the appellant did not meet the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa). The delegate relied on country information that included the DFAT Country Information Report Sri Lanka dated 18 December 2015.
The Immigration Assessment Authority (the Authority) conducted a fast-track review under Pt 7AA of the Migration Act 1958 (Cth). It obtained a later DFAT Country Information Report dated 24 January 2017 (the 2017 DFAT Report) as "new information" under s 473DC(1). The Authority accepted some of the appellant's earlier claims of harm but rejected the claims relating to Mr S as vague, disjointed, implausible and inconsistent with other evidence. It found the appellant had no profile that would attract adverse attention on return and that country information did not support a real chance or real risk of serious or significant harm for a returning Tamil asylum seeker. The Authority affirmed the delegate's decision on 20 April 2017.
The appellant sought judicial review in the Federal Circuit Court of Australia under s 476. That Court dismissed the application on 5 February 2018, holding that the Authority had complied with its procedural fairness obligations and that the statutory regime expressly permitted the Authority to receive and rely on new country information without providing it to the applicant for comment (CCQ17 v Minister for Immigration & Anor [2018] FCCA 244 at J[31]-[32]).
The appellant appealed to the Federal Court of Australia. By the hearing on 31 October 2018 he had abandoned all grounds except a reformulated ground 2 alleging that the Authority denied natural justice by failing to consider exercising its discretion under s 473DC to invite him to comment on the 2017 DFAT Report, and that the primary judge erred in failing to find jurisdictional error. Thawley J granted leave to the extent necessary for any new point to be argued. His Honour assumed without deciding that the Authority had failed to consider exercising the discretion but held that any such failure was not legally unreasonable. The appeal was dismissed with costs on the same day judgment was delivered.
Thawley J's reasoning is grounded in a close reading of the Pt 7AA statutory scheme and the concept of legal unreasonableness as explained in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 and Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475. The Court began by noting that Div 3 of Pt 7AA together with ss 473GA and 473GB is an exhaustive statement of the natural justice hearing rule (s 473DA(1)). Section 473DE(1) requires the Authority to give particulars of certain new information, explain its relevance and invite comment, but s 473DE(3)(a) expressly carves out new information that "is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member". The 2017 DFAT Report fell squarely within this exception.
The appellant reframed his complaint as one of legal unreasonableness in the Authority's failure even to consider exercising the discretionary power in s 473DC(1) and (3) to get new information or invite a person to give new information. The Court accepted that there can be circumstances in which a failure to consider the s 473DC discretion is legally unreasonable (citing CRY16 at [82], DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [70] and Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526 at [80]-[81]). However, the appellant bore the onus of proving both that the Authority in fact failed to consider the discretion and that the failure was unreasonable.
Thawley J found it unnecessary to decide whether the Authority had in fact considered the discretion, because even on the assumption that it had not, the failure was not unreasonable. The evaluation of unreasonableness had to occur through the lens of the Pt 7AA scheme rather than through the lens of unrestricted natural justice. That scheme modifies common law procedural fairness by restricting it, contains an express statement that the Authority has no duty to get, request or accept new information (s 473DC(2)), limits review to the material that was before the Minister subject to narrow exceptions (s 473DB(1)), and contains a statutory exhortation to pursue efficient, quick review that is free of bias and consistent with Div 3 (s 473FA(1)).
The Court contrasted the present facts with CRY16. In CRY16 a new issue (internal relocation) that had not been considered by the delegate became dispositive. The Authority knew it lacked information about the applicant's personal circumstances regarding relocation, knew the applicant was likely to have that information, and by failing to consider obtaining it disabled itself from properly assessing the reasonableness of relocation. None of those features was present here. The 2017 DFAT Report was general country information. It did not create any new issue. It was used at A[13], [21], [23] and [29] to support conclusions that were materially the same as those the delegate had reached using the 2015 DFAT Report. The appellant properly conceded that the two reports were used in the same way to support materially similar conclusions. The mere fact that the reports had different dates and were not identical was insufficient to trigger any obligation to consider inviting comment.
Thawley J emphasised that the statutory scheme expressly contemplates that a review decision may be made in reliance on information the significance of which the applicant is unaware. Section 473DE(3)(a) is a concrete manifestation of that contemplation. Viewing the matter through an un-modified natural justice lens (as the appellant's submissions tended to do) was therefore misplaced. Once the statutory context was properly recognised, the failure to consider inviting comment on the 2017 DFAT Report did not lack an evident and intelligible justification, was not arbitrary or capricious, and did not fall outside the range of possible lawful outcomes. Accordingly there was no jurisdictional error and the appeal had to be dismissed.
Before this judgment the law on the interaction between ss 473DC and 473DE was still developing. CRY16 had established that in some circumstances a failure to consider exercising the s 473DC discretion could be legally unreasonable, particularly where a new dispositive issue arose that the delegate had not addressed. DZU16 and DGZ16 had begun to explore the boundaries of that principle in the context of new country information and credibility concerns. Single-judge decisions such as BCQ16 and BVD17 had clarified that the Authority's statement of reasons need not expressly refer to consideration of procedural discretions and that an inference of non-consideration does not automatically arise from silence.
This judgment crystallised several propositions. First, the carve-out in s 473DE(3)(a) for general country information is a powerful indicator of parliamentary intention that applicants will not always be heard on such material. Second, the assessment of legal unreasonableness must be anchored firmly in the restrictive Pt 7AA scheme rather than in common-law natural justice principles. Third, the mere fact that more recent country information is obtained and relied upon is not, without more, enough to make a failure to consider inviting comment unreasonable. There must be something more—such as the creation of a new issue, a materially different use of the information, or a disabling of the Authority from performing its statutory task.
After the judgment, decision-makers and practitioners understood that generalised country information updates would rarely trigger an obligation to consider inviting comment unless they introduced a distinctly new risk profile or were deployed in a manner that fundamentally altered the delegate's reasoning. The decision reinforced the "limited review on the papers" philosophy of Pt 7AA. Subsequent cases have continued to apply the statutory-scheme lens when assessing reasonableness challenges to the exercise or non-exercise of Pt 7AA discretions. The judgment has therefore narrowed the circumstances in which applicants can successfully allege legal unreasonableness in the obtaining or use of updated but generalised country information.
At [34] the Court states: "The 2017 DFAT Report falls within s 473DE(3)(a) and therefore did not need to be put to the appellant by the Authority despite the terms of s 473DE(1)". In plain English, even though the Act normally requires the Authority to show an applicant any new information it intends to rely on, there is a specific exception for reports that talk about groups of people (like "Tamils" or "returning asylum seekers") rather than the individual applicant personally. The Authority could therefore use the report without first showing it to the appellant.
At [46] Thawley J quotes and endorses the observation from BCQ16 that "Part 7AA modifies (by restricting) the common law principles of procedural fairness. The analysis of what might be an unreasonable exercise of, or failure to exercise, a discretionary power contained in Part 7AA must proceed against the statutory context, which includes that modification". Translation: you cannot simply ask whether something feels unfair under ordinary court rules. You must ask whether it is unfair given that Parliament has deliberately cut back the normal rights to be heard in these fast-track reviews.
The pivotal passage appears at [54]: "The appellant did not show that the way in which the 2017 DFAT Report ... was used by the Authority gave rise to any new issue; nor did the appellant show that the principle of legal unreasonableness otherwise required the Authority to consider its discretion under s 473DC ... Indeed the appellant conceded, properly, that the two reports were used in the same way to support materially similar conclusions. The only matters which the appellant relied upon were the fact the reports had different dates and that they were not identical. This is not sufficient ...". In plain English, updating a country report is not enough on its own. Unless the new report raises a fresh question the delegate never looked at, or is used in a radically different way, the Authority does not have to stop and think about asking the applicant for comments.
At [56] the Court observes that the appellant's submission "incorrectly views the matter through the lens of natural justice. It fails to recognise that the statutory scheme expressly contemplates review decisions being made on the basis of information the significance of which the review applicant is unaware". Translation: the Act itself says that sometimes the applicant will not know about or be able to respond to information that decides his or her case. That is not an accident; it is part of the design of the fast-track system.
This precedent is triggered when three elements coincide in a Pt 7AA review. First, the Authority obtains and relies upon country information that was not before the delegate. Second, that information is general in nature—dealing with country conditions, risk profiles for certain ethnic or nationality groups, or changes since the end of a conflict—rather than being specifically about the individual applicant. Third, the new information is used to support conclusions that are materially the same as those reached by the delegate on the basis of earlier, similar country information.
The precedent applies with particular force where the applicant cannot point to any new dispositive issue that the delegate never considered. Examples include updated DFAT reports on the situation of Tamils in Sri Lanka, generic information about the treatment of returned asylum seekers from various countries, or reports showing that monitoring or registration requirements have eased since the delegate's decision. The precedent does not apply, or at least is distinguishable, where the new information introduces a completely fresh risk factor (for example, a newly enacted law that creates a new category of prohibited conduct), where the Authority uses the information to reject a claim on a basis the delegate never addressed, or where the Authority's reasoning reveals that it needed personalised information from the applicant that only the applicant could supply.
The factual foundation for a successful challenge would require evidence that the new country information was deployed in a materially different way or gave rise to a new issue that was dispositive. Mere differences in date or minor variations in language between successive DFAT reports are insufficient. The precedent therefore sets a high bar for applicants seeking to argue legal unreasonableness in the Authority's use of updated but generalised country information.
Later courts have treated the decision as authoritative on the interaction between ss 473DC and 473DE in the context of general country information. It has been followed in numerous single-judge decisions concerning Sri Lankan Tamils and Afghan Hazara applicants where updated DFAT reports were obtained. Judges have repeatedly cited [54] for the proposition that the mere obtaining of a more recent but generically similar country report does not, without more, render a failure to consider inviting comment legally unreasonable.
The Full Court has cited the decision with approval when reiterating that legal unreasonableness in Pt 7AA must be assessed against the restrictive statutory scheme rather than against common-law natural justice. The emphasis in [46] on the need to view the scheme holistically has been picked up in cases examining other procedural discretions under Pt 7AA. Courts have also followed the distinction drawn with CRY16, confirming that the "new dispositive issue" category remains narrow.
There has been no overruling or critical distinguishing of the core ratio. Instead, later authority has reinforced the principle that applicants must demonstrate something more than the mere existence of a later country report. The decision is now routinely cited in respondent submissions seeking summary dismissal of judicial review applications that rest on complaints about updated country information. Its practical effect has been to narrow the scope for successful unreasonableness challenges in fast-track reviews where only generalised country information is in play.
Several questions remain unresolved after this judgment. The Court expressly left open whether the Authority had in fact failed to consider exercising the s 473DC discretion. It also left open whether s 473DE(1) would have applied at all had the s 473DE(3)(a) exception not been engaged. These issues may arise in future cases where the reasons contain some positive indication that the Authority turned its mind to procedural fairness but decided against inviting comment.
A further open question is the precise degree of difference between successive country reports that might be sufficient to trigger an obligation to consider inviting comment. The present case involved reports that were accepted to have been used in the "same way" for "materially similar conclusions". It remains to be seen whether a report that contains a markedly more pessimistic assessment, or which introduces a new category of risk (for example, a specific reference to a previously unmentioned political movement), would cross the line into legal unreasonableness if the Authority does not at least consider seeking comment.
The judgment does not address the situation where the applicant has already provided detailed submissions or evidence directly responding to the subject matter of the new country information. In such circumstances it may be arguable that the Authority's failure to consider inviting further comment is more readily characterised as reasonable. Conversely, where the new information is so recent that the applicant could not possibly have known of its existence or content, the balance may shift. These edge cases will require future litigation to map the precise boundaries of the principle.
Finally, the interaction between this line of authority and the new information provisions in ss 473DD and 473DE where credibility concerns are raised by the Authority remains incompletely explored. While the present decision is clear for generalised country information, the position is less certain where the Authority uses country information to reject an applicant's account as implausible in circumstances the delegate did not address. These questions ensure that the precise metes and bounds of legal unreasonableness in Pt 7AA reviews will continue to be litigated.
THAWLEY J: 1 This is an appeal from orders of the Federal Circuit Court of Australia made on 5 February 2018, dismissing the appellant's application to that Court under s 476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Immigration Assessment Authority: CCQ17 v Minister for Immigration & Anor [2018] FCCA 244. 2 The Authority's decision, made on 20 April 2017, affirmed a decision of the delegate of the then Minister for Immigration and Border Protection (now the Minister for Home Affairs) not to grant the appellant a Safe Haven Enterprise (Subclass XE-790) visa (SHEV). The delegate found the appellant failed to meet the criteria for the grant of a visa under the Act.
background 3 The appellant is a Tamil from the Northern Province of Sri Lanka. He arrived in Australia as an unauthorised maritime arrival on 13 October 2012. 4 The appellant made an application for a SHEV on 18 April 2016. 5 The appellant claimed that if he returned to Sri Lanka he would face serious harm (including death). He was afraid of harm from the Sri Lankan Army (SLA), police authorities and the Eelam People's Democratic Party (EPDP). He was afraid of harm because of his alleged activist affiliation and his imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE). 6 The appellant made the following claims in support of his application: (1) Between 2004 and 2007, the appellant was badly beaten between seven and ten times by people in civilian clothing who questioned him as to whether he was an LTTE supporter. On one or more of these occasions he was threatened with a gun. (2) In 2006, while living in [redacted], an area controlled by the SLA, people in civilian clothing came to the appellant's house on multiple occasions and asked about a neighbour, "Mr P", who had been killed. On one of these occasions both his father and mother were beaten. (3) The appellant was beaten 3 times on other occasions for visiting relatives in [redacted] as at the time, people of Tamil ethnicity were not allowed to travel outside the areas they lived. (4) In 2007, due to his mother fearing for his safety, the appellant travelled to India by plane, using his passport. He went to a refugee camp in Rameshwaram. He remained in the refugee camp until 2010. On 29 December 2010, the appellant returned to Sri Lanka to be with his family after the civil war between the SLA and the LTTE had ceased. (5) On his return, the appellant spoke to a friend and neighbour, "Mr S", who intended to publish an article which claimed that the movement of sand from coastal areas was unsustainable. The article would be critical of the EPDP. Many people in the town were aware of Mr S's intention to publish. (6) On 31 December 2010, Mr S was shot and killed. The SLA asked around the neighbourhood about the murder and either the SLA or the EPDP came to the appellant's home and questioned him. The appellant told the people that came to his home that he suspected Mr S's murder was due to the article protesting the movement of sand. The SLA accused him of having knowledge of who killed his friend and threatened him with their batons. (7) The appellant feared that he would be killed by the same people that killed Mr S as he had spoken to others in his community about the article and had told them he agreed with it. The appellant suspected that people in his community might believe the appellant also planned to publish a similar article. Many people in the community believed the EPDP to have been involved in Mr S's death. (8) After being questioned by the SLA, the appellant went into hiding for 3 to 4 months at his uncle's house in [redacted]. (9) The SLA visited his parents' house and asked about his whereabouts 4 to 5 times during that period. (10) The appellant then moved to Colombo where he stayed in 3 to 4 places over 14 months in an attempt to avoid the EPDP discovering his location. The SLA visited his parents' home approximately 3 or more times in this period. 7 The appellant claimed that, at the end of this period, he made arrangements to leave Sri Lanka and travelled by plane to Singapore using his passport. 8 In Singapore, the appellant was introduced to a man named "Mr D". Mr D took the appellant's passport and made arrangements for him to travel to Malaysia by car, and then to Indonesia. In Indonesia, a boat was organised for the appellant's travel to Australia. On requesting that Mr D return his passport, Mr D ripped it up. 9 The appellant arrived at Christmas Island on 13 October 2012.
the delegate's decision 10 The delegate was not satisfied that the appellant met the refugee criterion in s 36(2)(a) of the Act. The delegate concluded that the appellant did not meet the complementary protection criterion in s 36(2)(aa) of the Act. 11 It is not necessary to set out the delegate's conclusions and reasoning other than to note that the delegate relied on various items of country information including a "DFAT Country Information Report Sri Lanka", 18 December 2015 (2015 DFAT Report).
the authority's decision 12 The Authority affirmed the decision of the delegate not to grant the appellant a protection visa. 13 The Authority accepted that: (1) between 2004 and 2007, the appellant was suspected of having LTTE links and interrogated and beaten on a number of occasions (although fewer than claimed in the appellant's written application): A[8]; (2) in 2006, the appellant's neighbour, Mr P, was shot and killed, and that after the death, plain clothed men interrogated the appellant, and beat his parents: A[9]; (3) in 2007, the appellant was sent by his parents to India due to poor living conditions and the continuing adverse attention he received from the SLA due to being a young Tamil male in an area where the LTTE was active: A[10]. 14 The Authority did not accept parts of the appellant's account of events given at his SHEV interview regarding the death of his friend, Mr S, after his return to Sri Lanka. The Authority stated at A[16] to A[18] and A[20]: 16. In particular, the applicant's evidence at the SHEV interview regarding Mr S was vague and disjointed, which contrasted with his evidence about other events such as the physical assaults he was subjected to prior to 2007, which were less recent experiences. I am prepared to accept the applicant had a friend called Mr S, who may have been murdered for the reasons the applicant has claimed, but I do not accept the applicant was in any way linked to this matter, or subject to the adverse attention of the SLA as a result. 17. The applicant stated he returned from India on 30 December 2010 and that evening spoke to his friend Mr S, who told him that the sand moving project was causing water to flow into their village, and the project should be stopped. Mr S told the applicant "he was writing about it on his computer" and the next morning Mr S was found murdered. In the applicant's written claims he has stated he had told people he was also opposed to the project and was concerned other people believed he, the applicant, would publish a critical article. Given the applicant had only been home for a few hours, after an absence of three years, during which he has not claimed he had any contact with Mr S, I find this implausible. On the evidence before me I do not accept the applicant had any sort of conversation with Mr S the night before his murder, that the applicant told people he was opposed to the project, or that the local community believed the applicant was going to continue on with the work of Mr S. 18. I also note the applicant has been inconsistent as to whether it was the SLA or the EPDP who came to question him, his parents and other neighbours the day after the murder, and which group continued to question the applicant's parents about his whereabouts while he was in hiding. The delegate asked the applicant who he believed had murdered Mr S and he responded it was the EPDP. The delegate asked the applicant if the SLA had come to ask him about Mr S's murder and he replied they had not, but the EPDP had. However in the applicant's written claims he has stated it was the SLA who were searching for him when he was hiding in [redacted] and Colombo. … 20. On the evidence before me I do not accept the applicant was questioned about Mr S's murder the day after it occurred or that the SLA and/or EPDP had any interest in him regarding this matter. As I am satisfied the SLA and/or the EPDP did not have an interest in the applicant for any other reason, I do not accept the SLA and/or EPDP questioned the applicant's parents four to five times when he was hiding in [redacted], or three times after he had left [redacted] for Colombo, where he claims he resided for fourteen months before departing Sri Lanka for Singapore by plane. On the evidence before me I am not satisfied the applicant has a profile with the Sri Lankan authorities because of the murder of his friend Mr S, that he was ever wanted for questioning or that he was ever in hiding for this reason. I am not satisfied the applicant faced a real chance of harm from the SLA or EPDP in relation to his friendship with a claimed activist, Mr S, or any imputed anti-Sri Lankan government political opinion arising from this. 15 The Authority was satisfied that the appellant had departed Sri Lanka and travelled to Singapore legally without incident: A[19]. 16 The Authority accepted that, on returning to Sri Lanka, the appellant may be considered a returning asylum seeker by authorities: A[21]. However, country information did not indicate that returning Tamil asylum seekers faced a real risk of serious harm: A[21], [22], [23], [28], [29], [30]. 17 The Authority also concluded, as had the delegate at D[22], that the monitoring and harassment of Tamils in day-to-day life had eased since the war had ended and that the forced registration of Tamils had ceased: A[13]. In reaching the conclusions at A[13], the Authority relied upon a report being "DFAT Country Information Report - Sri Lanka" , 24 January 2017 (2017 DFAT Report). 18 The Authority had obtained the 2017 DFAT Report as "new information" in accordance with its discretionary power to do so: A[3]. The 2017 DFAT Report had not been before the delegate at the time of the decision and was clearly considered, by the Authority, to be relevant to its review - cf: s 473DC(1) of the Act. 19 The Authority also relied on the 2017 DFAT Report in reaching conclusions at A[21], [23] and [29]. It was not suggested that these conclusions were materially different to any conclusion which had been reached by the delegate. 20 The Authority found that the appellant was not a refugee within the meaning of s 5H(1) of the Act and therefore did not meet the requirements of s 36(2)(a) of the Act: A[25]. 21 The Authority also found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there was a real risk that the appellant would suffer significant harm and therefore did not meet s 36(2)(aa) of the Act: A[31].
Federal Circuit court 22 The appellant relied on three grounds of review before the Federal Circuit Court. Only the second is now relevant for reasons which will become apparent: 2. IAA made a jurisdictional error of natural justice. Particulars IAA did not put to the Applicant the country information relied on. 23 The primary judge outlined the reasoning and decisions of the delegate and Authority. His Honour addressed the appellant's oral submissions at the hearing, noting at J[27] that "in substance, the appellant's submissions from the bar table invited this Court to engage in impermissible merits review. Nothing said by the appellant from the bar table identified any jurisdictional error". 24 The primary judge reasoned, relevantly to ground 2, at J[31], [32]: 31. In relation to ground 2, on the face of the material before the Court, the Authority complied with its obligations of procedural fairness by giving the applicant an opportunity to put on new information and put on submissions. 32. The statutory regime under Part 7AA expressly provides for the Authority to receive new country information without providing same to the applicant for comment or submission under [s 473DE(3)(a)] of the Act. There was no denial of natural justice by the Authority taking into account more recent country information. No jurisdictional error was made out by ground 2. 25 The Federal Circuit Court dismissed the appellant's application.
the appeal 26 The appellant's notice of appeal raised five grounds. The first three were, in substance, the grounds relied upon in the Federal Circuit Court. The fourth and fifth grounds were new. 27 Two days before the hearing, on 29 October 2018, the appellant by his counsel, whom he had recently retained, submitted a written outline of submissions indicating that ground 2 of the notice of appeal was pressed. At the hearing of the appeal, the appellant formally abandoned grounds 1, 3, 4 and 5. 28 There was some debate about whether ground 2 as pressed was strictly within the terms of ground 2 as pleaded or within the terms of ground 2 before the Federal Circuit Court. If it was new, the appellant required leave: Coulton v Holcombe (1986) 162 CLR 1; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588. Whether or not leave should be granted depends on whether, in all the circumstances, it is in the interests of justice to do so, notwithstanding that the point should have been, but was not, taken in the court below. 29 The parties were prepared to argue the point as it had been put in written submissions. The expedient course to adopt in the particular circumstances of this case is to grant leave to the extent necessary. 30 The appellant's single remaining ground of appeal, ground 2, was: 2. The Authority denied the applicant natural justice by failing to put [to] him the country information that it relied upon. Federal Circuit Court Judge Street failed to hold that it was a jurisdictional error. 31 Division 3 of Pt 7AA of the Act, together with ss 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority: s 473DA(1). Section 473DA(1) provides: (1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority. (2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65. 32 Section 473DE of the Act (which is in Division 3) provides that, in the particular circumstances identified in s 473DE(1)(a), new information must be given to the referred applicant, the relevance of the new information to the review must be explained and the referred applicant must be invited, orally or in writing, to comment on the new information. Section 473DE(3)(a) specifically excludes from this requirement new information that "is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member". 33 Section 473DE relevantly provides: (1) The Immigration Assessment Authority must, in relation to a fast track reviewable decision: (a) give to the referred applicant particulars of any new information, but only if the new information: (i) has been, or is to be, considered by the Authority under section 473DD; and (ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and (b) explain to the referred applicant why the new information is relevant to the review; and (c) invite the referred applicant, orally or in writing, to give comments on the new information: (i) in writing; or (ii) at an interview, whether conducted in person, by telephone or in any other way. (2) The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances. (3) Subsection (1) does not apply to new information that: (a) is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or (b) is non-disclosable information; or (c) is prescribed by regulation for the purposes of this paragraph. 34 The 2017 DFAT Report falls within s 473DE(3)(a) and therefore did not need to be put to the appellant by the Authority despite the terms of s 473DE(1): CMY17 v Minister for Immigration and Border Protection [2018] FCA 1333 at [46]; EKW17 v Minister for Immigration and Border Protection [2018] FCA 1366 at [17]-[20]. 35 The appellant, however, submitted that the error was one of legal unreasonableness in failing to consider inviting the appellant to "comment" on the new country information under s 473DC of the Act. 36 Section 473DC(1) gives the Authority a discretion to "get any documents or information (new information)" that were not before the Minister when the decision was made and that the Authority considers relevant. Section 473DC(3), which does not limit s 473DC(1), gives the Authority a discretion to "invite a person … to give new information" in writing or at an interview. 37 Section 473DC provides: (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that: (a) were not before the Minister when the Minister made the decision under section 65; and (b) the Authority considers may be relevant. (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances. (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information: (a) in writing; or (b) at an interview, whether conducted in person, by telephone or in any other way. 38 There may be circumstances in which it would be legally unreasonable to fail to consider exercising the discretion under s 473DC: Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at [82]; DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [70]; Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526 at [80], [81]. In this regard, the appellant bears the onus of establishing: (1) the factual foundation for the conclusion that the Authority did fail to consider exercising the discretion: VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [45] (Hill, Sundberg and Stone JJ); (2) that there was jurisdictional error in failing to consider exercising the discretion: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67] (Gummow J) 39 Section 473EA(1) does not require the Authority's written statement of decision to include a statement as to the exercise of a procedural decision in the course of review: BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [45], [49], [50]; BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114 at [42] (both cases concerning s 473GB). The absence of a reference to the consideration or exercise of a discretion does not of itself give rise to an inference that its exercise was not considered: SZGUR at [31] (French CJ and Kiefel J); BVD17 at [49]. That is not to deny that there may be circumstances where the lack of any information in the reasons as to, or reference to consideration of, the exercise of the discretion supports an inference that the discretion was not considered: BCQ16 at [50]; BVD17 at [50]. 40 The appellant submitted that it should be inferred that the Authority failed to consider exercising the discretion under s 473DC. 41 It is unnecessary to decide whether or not that is the case. Even if the Authority failed to consider exercising the discretion under s 473DC in the present case, the circumstances were not such that any such failure was legally unreasonable with the consequence that the decision was vitiated by jurisdictional error. 42 There are no fixed categories of circumstances in which it would be legally unreasonable to fail to consider the discretion in s 473DC. An example, however, is provided by CRY16. That was a case in which an issue arose before the Authority, which had not been considered by the delegate and which was "dispositive" in the Authority's conclusions on review. DZU16 was also such a case. The present case is not. In stating that this case does not fit within the example provided by CRY16, I do not intend to say that it must fit within the example provided by that case in order to be characterised as legally unreasonable. 43 In CRY16, the primary judge had concluded that the Authority acted unreasonably in not considering whether to exercise its discretion to provide the referred applicant an effective opportunity to address a new issue which the Authority found "dispositive", being the potential for the appellant to relocate within his country of origin. The referred applicant submitted that, given the Minister's delegate had not given any consideration to the issue of relocation, the Authority erred in failing to consider exercising its discretion under s 473DC to get documents or information on the issue of relocation, including information from the appellant pertaining to his personal circumstances. 44 The Full Court explained (at [82]) that the failure by the Authority to consider obtaining new information lacked an evident and intelligible justification, in circumstances where: (1) the Authority knew that it did not have information on the referred applicant's particular circumstances and the impact upon him of relocation to Beirut; (2) (the Authority knew that) the referred applicant was likely to have information on his particular circumstances and the impact upon him of relocation to Beirut; (3) the Authority did not have that information because the question of relocation was not explored, or the subject of findings, by the delegate; and (4) the Authority's failure to consider the exercise of the discretionary power meant that it "disabled itself" from considering what was reasonable, in the sense of "practicable", in terms of relocation. 45 The question of legal unreasonableness is to be approached through the lens of the specific statutory scheme and not through the lens of the principles of natural justice unaffected by statute: CRY16 at [67]; DZU16 at [99]; BMV16 v Minister for Home Affairs [2018] FCAFC 90 at [81]. As noted earlier, Division 3 of Part 7AA (with ss 473GA and 473GB) contains its own exhaustive statement of the natural justice hearing rule: s 473DA(1). 46 The discretion in s 473DC(1) and (3) must be read with s 473DC(2) which provides that the Authority "does not have a duty to get, request or accept, any new information" whether requested to do so or in any other circumstance. Whilst this does not deny that the Authority must act reasonably in exercising or considering the exercise of its discretionary powers, what is reasonable must be assessed according to the statutory scheme. As was said in BCQ16 at [71]: Part 7AA modifies (by restricting) the common law principles of procedural fairness. The analysis of what might be an unreasonable exercise of, or failure to exercise, a discretionary power contained in Part 7AA must proceed against the statutory context, which includes that modification. Whilst the legislature is taken to have intended that a discretionary power will be exercised reasonably (Li at [63], per Hayne, Kiefel and Bell JJ; [88], per Gageler J), that which is reasonable is informed by the subject matter, scope and purpose of the legislation under which it is conferred. Part 7AA requires the Authority to review a decision and to conduct that review on the basis of the "review material" and, subject to the statutory exceptions contained in Part 7AA, without obtaining "new information" or affording the referred applicant a hearing. The reasonableness of an asserted failure to consider a discretionary power to disclose material to the referred applicant, and the reasonableness of the exercise of the discretion itself, must be assessed against that statutory scheme. 47 In addition to s 473DC(2), a further important aspect of the statutory scheme is that s 473DE(3)(a) expressly contemplates that new information (such as new country information) can be used to affirm a decision (see s 473DE(1)(a)(ii)) without giving a referred applicant an opportunity to be heard. That does not mean that s 473DC could never be used in circumstances where the exclusion in s 473DE(3)(a) applied. Nor is to say that the particular circumstances of a case may be such that it would be legally unreasonable not to exercise or consider exercising the discretion in s 473DC despite there being no obligation (as a consequence of the exclusion in s 473DE(3)(a)) to afford the opportunity to be heard contemplated by s 473DE. 48 It is also relevant to note that the statutory scheme contemplated by Part 7AA is one of limited review on the papers with a default position of not accepting or requesting new information: s 473DB(1). Section 473FA(1) contains a general exhortation that, in carrying out its functions under the Act, the Authority "is 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)". 49 These features of the statutory scheme are relevant to the identification of the scope and purpose of s 473DC in order then to evaluate whether the discretion was exercised in a way which was legally reasonable in the sense described in CRY16 and BMV16 at [52], or whether a failure to consider exercising the discretion was legally unreasonable. 50 In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11] (Allsop CJ, Griffiths and Wigney JJ), Allsop CJ explained that the task of reviewing a decision for legal unreasonableness is not definitional, but one of characterisation: … [T]he decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. … 51 In determining whether an established failure to consider exercising a discretionary power was legally unreasonable, it is necessary to: (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. 52 As to (1), assuming (without deciding) that the Authority failed to consider exercising the discretion under s 473DC, the failure was a failure to invite the appellant to comment on the 2017 DFAT Report. 53 As to (2), the statutory scheme has been referred to above, in particular at [46] to [48]. Part 7AA restricts the rules of natural justice. It specifically contemplates the use of country information as a reason for affirming a decision without affording an opportunity to the referred applicant to be heard - see: s 473DE, in particular s 473DE(1)(a)(ii) and s 473DE(3)(a). As noted at [47] above, that does not mean there is necessarily no role for s 473DC to play in a particular case. The statutory scheme expressly states that there is no duty to get new information: s 473DC(2). 54 As to (3), assuming there was failure to consider exercising the discretion under s 473DC, such a failure does not have the characteristics of being legally unreasonable. The appellant did not show that the way in which the 2017 DFAT Report (which itself was "new information") was used by the Authority gave rise to any new issue; nor did the appellant show that the principle of legal unreasonableness otherwise required the Authority to consider its discretion under s 473DC to seek new information from the appellant. The appellant did not show, for example, that the 2017 DFAT Report was used in a way which was materially different to the way in which the delegate had used the 2015 DFAT Report and the other country information which had been before him. Indeed the appellant conceded, properly, that the two reports were used in the same way to support materially similar conclusions. The only matters which the appellant relied upon were the fact the reports had different dates and that they were not identical. This is not sufficient to support a conclusion that it was legally unreasonable to fail (assuming that to be the case) to consider exercising the discretion under s 473DC. 55 The appellant submitted that the failure to "invite comment" under s 473DC(3) was legally unreasonable because the failure had the effect that a decision was made by the Authority in reliance upon information the significance of which the appellant was left unaware. The appellant submitted that there was no intelligible justification for doing so. 56 This submission incorrectly views the matter through the lens of natural justice. It fails to recognise that the statutory scheme expressly contemplates review decisions being made on the basis of information the significance of which the review applicant is unaware. Section 473DE(3), for example, expressly contemplates such a result. What the appellant had to show was that in circumstances where: (1) the statutory scheme restricted the natural justice hearing rule; and (2) s 473DE(3)(a) disengaged what otherwise would be the operation of s 473DE(1) (for present purposes it is not necessary to decide whether s 473DE(1) would in fact have applied - that is whether s 473DE(1)(a)(i) and (ii) were satisfied), there was nevertheless a legally unreasonable failure to exercise the discretion conferred by s 473DC. 57 The appellant has failed to do so.
CONCLUSION 58 The appeal is dismissed. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley.
CCQ17
Minister for Immigration and Border Protection
(1986) 162 CLR 1
(2017) 253 FCR 475
(2018) 253 FCR 526
(2016) 237 FCR 1
(2011) 241 CLR 594
(2004) 238 FCR 588
The appeal be dismissed. The appellant pay the first respondent's costs as agreed or assessed.