What happened
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.
Why the court decided this way
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 and after state of the law
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.
Key passages with plain-English translation
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.
What fact patterns trigger this precedent
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.
How later courts have treated it
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.
Still-open questions
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.