The discretion in s 473DC(1) and the requirements of s 473DD
26 Thawley J's decision in EMJ17 is authority to support the submission that it can be a jurisdictional error to conclude that the absence of 'exceptional circumstances' within the meaning of s 473DD(a) means that the discretion under s 473DC cannot be exercised in favour of getting new information.
27 I can do no better than set out his Honour's reasoning on the point in full ([2018] FCA 1462 at [60], emphasis in original):
The statutory scheme so far as it concerns getting (s 473DC) and considering (s 473DD) 'new information' can, for present purposes, be summarised as follows:
(1) Section 473DC(1) gives the Authority a discretion to get 'new information' which it considers 'may be relevant' and which was not before the Minister when the s 65 decision was made.
(2) In considering whether the documents 'may be relevant', the Authority is necessarily engaged in an exercise which is speculative to some degree.
(3) Section 473DD prevents the Authority from considering any new information unless satisfied that there are 'exceptional circumstances' in accordance with the terms of the provision. The Authority can only consider new information if it has first got it.
(4) The discretion to get new information under s 473DC(1) does not expressly turn on whether there are 'exceptional circumstances' within the meaning of s 473DD(a). The requirement for there to be 'exceptional circumstances' only arises when the Authority addresses whether it is prevented by s 473DD from considering the 'new information' it has got.
(5) The nature and content of the 'new information' would ordinarily, or at the least may, be relevant to whether there are 'exceptional circumstances' under s 473DD(a) justifying considering the 'new information' - see, or [sic 'for'] example: Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [59].
(6) The discretion to get new information under s 473DC(1) is only confined by the terms of the section read in its statutory context, in particular the context of Part 7AA as a whole. That context includes that there is no duty to get information in any circumstance: s 473DC(2).
(7) The discretion in s 473DC(1) is to be exercised having regard to the particular circumstances of the case. It may well be permissible, having regard to s 473DC(2) and the statutory scheme more generally, to decline to exercise the discretion to get information because the circumstances were not perceived to be sufficiently unusual or exceptional, so long as it was understood that the section did not necessarily require that there be 'exceptional circumstances' within the meaning of s 473DD before the discretion to get new information was exercised.
28 After setting these principles out, his Honour held (at [61]-[63]) that in the case before him the Authority approached the task of whether to get new information under s 473DC on the basis that it was required to be satisfied there were 'exceptional circumstances' within the meaning of s 473DD. That was erroneous because the Authority thought that the discretion in s 473DC(1) was 'confined by a requirement that there exist, at the time of considering whether to exercise the discretion to get new information under s 473DC(1), "exceptional circumstances" within the meaning of s 473DD(a) which would justify the Authority later considering the new information' (see [63]). The error was significant because the question of whether there were 'exceptional circumstances' might be affected by the nature and content of the material which the Authority had not yet got.
29 Moshinsky J followed EMJ17 on this point in DKF16 (and EMJ17 received favourable consideration in EBY17 v Minister for Immigration and Border Protection [2019] FCA 222 at [64] and FKO17 v Minister For Home Affairs [2019] FCA 98 at [52]). The Minister did not submit that Thawley J's reasoning in EMJ17 was incorrect. I consider with respect that it is correct and that I should follow it.
30 The question thus becomes whether the decision of the Authority which is the subject of this appeal displays the erroneous view that the discretion in s 473DC(1) was confined by a requirement that 'exceptional circumstances' within the meaning of s 473DD(a) must exist.
31 There is a potentially significant difference between the facts in each of EMJ17 and DKF16 and the facts of the present appeal. In both of those previous cases, no part of the information that the Authority declined to get had been given to the Authority. In EMJ17 it was information about a protection visa application that the applicant had made in Nauru. In DKF16 it was potential evidence from two individuals who, the applicant said, would corroborate his claims.
32 As a result, the question of whether the Authority should get the new information was squarely before it in both cases. The sentence from the Authority's decision in EMJ17 in which Thawley J identified the error (see EMJ17 at [62]) was: 'I am not satisfied that there are exceptional circumstances to justify the IAA getting new information regarding the applicant's application for protection in Nauru' (emphasis added). The error of requiring s 473DD to be satisfied as a precondition of exercising the discretion to get information in s 473DC is plain on the face of that sentence. Similarly, in DKF16 the Authority said 'I am not satisfied that there are exceptional circumstances which justify obtaining new information from these two people' (see DKF16 at [10], emphasis added).
33 In this appeal, in contrast, the appellant had quoted and summarised selected parts of the CORI report for the Authority, although the report was not provided to it. So, understandably, the quote from paragraph 4 of the Authority's decision which I have set out above is framed in terms of whether the requirements of s 473DD had been satisfied so as to permit the Authority to consider the new information. There is nothing wrong with that approach per se; it is something the Authority is required to do regularly when new information is presented to it.
34 However in the circumstances of this case, I do not consider that the difference I have identified should entail any outcome different from the outcomes in EMJ17 and DKF16. The fact remains that the Authority did not have the CORI report. The Authority only had the existence of the report drawn to its attention, and a brief summary of selected parts of the report provided to it. The title of the report indicated its subject matter. In view of that, the entirety of the report was potentially relevant. The alleged blood feud was important to the appellant's claims. The report was also potentially relevant in view of the basis on which the Authority ended up dealing with that aspect of his claims, where the Authority's approach differed from that of the delegate.
35 So both the preconditions in s 473DC(1) were potentially satisfied: the CORI report was not before the delegate when the delegate made the decision under s 65, and it was open to the Authority to consider that the report may be relevant. The discretion under s 473DC(1) thus arose. The Authority needed to consider whether to get the report. It had no duty to get, request, or accept it: s 473DC(2). But it had the power to do so. If it failed to exercise that power, or to consider exercising it, because of a misunderstanding about whether s 473DD confined the power, that would be a jurisdictional error of the kind identified in EMJ17.
36 It is true that the error of conflating the requirements of s 473DD and the discretion in s 473DC(1) is not as plain on the face of the Authority's decision here as it was in EMJ17 or DKF16. It is also true that the Authority's reasons are not to be read with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. And, as the Minister submitted and the appellant accepted, there was no duty on the Authority to give reasons for any decision not to exercise the discretion under s 473DC(1) in the appellant's favour. So an inference that the omission to mention the discretion means that the Authority overlooked or misunderstood it is less readily made than it might be if there was a duty to give reasons: see BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 373 ALR 196 at [40].
37 Nevertheless, in my view the inference should be made here. Considering paragraph 4 in the context of the Authority's reasons as a whole leads to the conclusion that the Authority went directly to the question of whether the requirements of s 473DD were satisfied, without considering whether it could and should get the CORI report under s 473DC(1). Paragraph 4 contains references to whether the Authority was satisfied 'that the documents could have been provided to the Minister before the delegate made his decision' (cf. s 473DD(b)(i)), whether the report was 'credible personal information' and whether had 'the information been known it could have affected the consideration of the applicant's claims by the delegate' (cf. s 473DD(b)(ii), and whether there were 'exceptional circumstances to justify considering this new information' (cf. s 473DD(a)). Those references show that the Authority's consideration of the CORI report was confined to whether it satisfied the requirements of s 473DD.
38 That this is what the Authority did is readily explicable on the basis that the Authority assumed that it already knew what the report said, so it did not need to get the report, in order to determine whether it could consider it. But that assumption was wrong. I do not accept the Minister's submission that the appellant had given the relevant new information to the Authority or that the Minister already had all the relevant extracts from the report. The information which the appellant now submits was material is not the information that was extracted in his submission to the Authority. It may have been open to the Authority to infer from the fact that the appellant's solicitor had extracted certain parts that they were the only parts that were relevant, so it did not need to get the whole report. But that is not what the Authority did. Rather, as I have described, on the mistaken assumption that it already knew what was in the CORI report, it proceeded straight to a consideration of the requirements of s 473DD without considering whether it should first obtain the report.
39 That approach is not readily explicable by the hypothesis that the Authority considered exercising the discretion under s 473DC(1), discarded the possibility, and did not think it worthy of mention in its reasons. It would be an odd thing for the Authority to explain fully its reasoning in relation to s 473DD without any mention of its reasoning in relation to s 473DC. The better view is that, in fact, the Authority's focus on s 473DD meant that it did not consider s 473DC at all.
40 That approach is at odds with the scheme of s 473DC and s 473DD as explained in EMJ17. In particular, what the Authority overlooked here is that the content of the CORI report, which it did not have, was potentially relevant to the question of whether there were exceptional circumstances to justify considering the report. I accept that the Authority did not mix up the two provisions in its mind. In the paragraph immediately following its rejection of the CORI report in paragraph 4, where it recorded how it had obtained and considered certain updated country information, the Authority appears to be aware of the distinction between those two steps. Nevertheless, the inference that arises from paragraph 4 is that the Authority thought that if it could not consider the CORI report because of s 473DD, there was no need to decide whether to get the report under s 473DC(1). The flaw in that approach, as Thawley J points out in EMJ17, is that the content of new information will often be relevant to whether there are exceptional circumstances justifying the consideration of the information.
41 The Minister also sought to distinguish this case from EMJ17 and DKF16 on the ground that in this case, the appellant did not expressly or impliedly ask the Authority to get the new information. In my view there is such an implied request - citing the report is an invitation to get it, and extracting or summarising isolated passages does not give rise to any implication to the contrary. But in any event s 473DC does not make the discretion to get new information conditional on a request from the referred applicant. Section 473DC(1)(b) conditions the existence of the discretion on whether the Authority considers that the information may be relevant. The Authority can reach that view independently of any request by the applicant. Section 473DC(2) provides that the Authority does not have a duty to get new information whether it is requested to do so by a referred applicant or by any other person or in any other circumstances. That suggests that the discretion can arise irrespective of whether a request has been made or not. More broadly, any view that a lack of any request by an applicant means the discretion does not arise would be inconsistent with the administrative, as opposed to adversarial, nature of the Authority's decision making process, and with the limited participation in that process which Part 7AA affords to an applicant.
42 The Minister's submission that it would be artificial for the Authority, after deciding that it could not consider the new information, to go back to consider whether to get that information, is therefore not to the point. It was a jurisdictional error for the Authority to divert itself from considering the exercise of the discretion at all, because of the view it took about the application of s 473DD, uninformed by knowledge of the full contents of the report.
43 It follows from these findings that it is not possible to read the Authority's decision as having taken the line of reasoning, left open by Thawley J in EMJ17, that the circumstances were not sufficiently unusual or exceptional to justify exercising the discretion in favour of getting the CORI report. The better view is that the Authority's error, as I have described it, means that it did not consider exercising the discretion at all.
44 The Minister submitted that a mere failure to consider the exercise of the power under s 473DC is insufficient per se to give rise to jurisdictional error. The submission relied on DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 366 ALR 665 at [39] (Griffiths and Steward JJ). But the point their Honours were making there was that there had to be something more than just a failure to consider the exercise of the discretion, for example the failure had to have the character of being legally unreasonable: see DPI17 at [38], quoting from CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [51] (Thawley J). Here, for the reasons I have given, the Authority's failure to consider the exercise of the discretion was a result of its view that an adverse finding under s 473DD(a) about excerpts of the report was the end of the matter. So it was a failure that resulted from a misconception of the interaction between s 473DC and s 473DD, meaning it was infected by jurisdictional error.
45 The Minister also submitted that it was significant that the Authority had not accepted the appellant's claims that his parents had been killed in the circumstances he described, which the Minister said were the 'claims giving rise to the apparent blood feud'. This, it was submitted, made it unnecessary for the Authority to consider country information as to blood feuds. But the claim about the blood feud was not dependent on the claims about the circumstances in which the appellant's parents died. Despite rejecting the latter claims, the Authority accepted that the appellant and his family had been involved in a dispute over water with their Pashtun neighbours. What the Authority did not accept was that the dispute was a blood feud, which could still expose the appellant to danger if he returned to his home district approximately 19 years after the dispute arose. The CORI report, while not unequivocal, contained information capable of changing the Authority's finding that the dispute was not a blood feud. That finding was based, in part, on country information to the effect that blood feuds were not likely between members of different ethnic groups, while the CORI report contained information contradicting that view.
46 The Authority's failure to consider getting the CORI report was material in the sense explained in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 363 ALR 599 at [45]. There was a realistic possibility that if the Authority had obtained the CORI Report, it may have accepted that blood feuds do occur between members of different ethnic groups, which could have changed its finding about the existence of a blood feud between the Pashtun family and the appellant. While the Authority found it significant that the appellant's uncle and then a caretaker had lived on the land after the death of the appellant's father, the appellant had made submissions to the effect that in a blood feud, revenge is only taken against the 'offender' and not other kin. So a finding that the enmity between the appellant and the Pashtun family was a blood feud might have changed the Authority's view as to whether that enmity might reanimate on the appellant's return to Afghanistan.
47 Further, the Authority's finding that there were no exceptional circumstances to justify considering the CORI report did not foreclose a realistic possibility that the outcome could have been different if the Authority had obtained the report. The finding of a lack of exceptional circumstances was made with limited knowledge of the parts of the report concerning the issue of whether blood feuds lasted a long time, which in the end merely affirmed part of the delegate's reasoning. Other relevant parts of the report went to the different question, which the Authority but not the delegate thought relevant, of whether blood feuds could take place between members of different ethnic groups. If the Authority knew of those parts of the report, it might have reached a different view on the existence of exceptional circumstances.
48 There was some debate at the hearing of the appeal about the order in which the Authority should approach consideration of such questions as arise under s 473DC and s 473DD. Counsel for the appellant suggested that the Authority would have to consider s 473DD twice, because if it decided that s 473DD(b) prohibited it from considering new information provided by an applicant, it would then have to consider under s 473DC(1) whether it should nevertheless get the information itself, and if it did get the information, it would have to turn again to whether s 473DD(a) prohibited it from considering it. I do not consider that the scheme of s 473DC and s 473DD dictates that the Authority must follow any such elaborate course. What the scheme does require is that in the appropriate circumstances, the Authority must decide whether to get new information. That will be confined by the requirements of s 473DC(1)(a) and s 473DC(1)(b). But it must not be confined by any view that, because the absence of 'exceptional circumstances' within the meaning of s 473DD(a) rules out any consideration of the new information, there is no need to determine whether to get the information.
49 The conclusion that there was a jurisdictional error of that kind means that it is not necessary to consider the appellant's submission that the Authority erred in its application of s 473DD(a), or the Minister's objection to that submission on the basis that it is a new point which was not raised in the grounds of appeal, the written submissions, or before the primary judge. It is also not necessary to consider the appellant's submission that the Authority's decision not to get the CORI report, or not to consider whether to get it, was unreasonable in the sense explained in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475, applying Li.