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[2018] FCAFC 12
respondent. The appeal is dismissed. The appellant pay the first respondent's costs, as agreed or taxed.
The Full Federal Court dismissed an appeal by an Iraqi asylum seeker whose protection visa claims were rejected by both a delegate and the Immigration Assessment Authority. The Court held that the fast-track review system under Part 7AA is deliberately limited: it is mainly 'on the papers', natural justice requirements are fully set out in the legislation itself, and the Authority does not have to warn applicants when it doubts their story for reasons slightly different from those of the original decision maker, provided credibility was already in issue. The Court also upheld a practice direction limiting written submissions to five pages, saying it simply promotes clear and concise arguments without blocking important new information. The appellant's credibility as a supposed secret informant was always the central battleground, so the Authority could reach its own view without further procedural steps.
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The appellant, who claimed to be a Shia Muslim from Nasiriyah in Iraq, asserted that he had worked as a secret informant for the Counter Terrorism Service (CTS), part of the Iraqi security forces. He said he supplied information about weapons trading networks linked to militias and extremists, leading to arrests. In consequence, he claimed, he and his family suffered serious harm: he was stabbed in a market in October 2010 and received threatening phone calls; the family home was burnt in January 2011; his younger brother was kidnapped in September 2011 and released only after ransom funded by sale of the family home; and, after the appellant left Iraq in 2012, his father was killed in January 2013 and his older brother in June 2013. He maintained these events were retaliation by the weapons traders and militias.
On 20 January 2016 the appellant lodged an application for a Safe Haven Enterprise (Class XE) Subclass 790 visa. He attended a protection visa interview on 12 July 2016. The delegate refused the application on 19 August 2016, finding that the core claims were not plausible. In particular, the delegate relied on a 2015 Brookings Institution report by David Witty which indicated that the CTS did not maintain regional commando battalions in the Nasiriyah area until spring 2013, after the appellant had left. This finding destroyed the foundation of the appellant's narrative. The delegate also considered the appellant's account of his motivation (having seen a child lose a leg in an explosion) and the implausibility that a reasonable person would continue informant activities after personal attack and the burning of the family home. Broad adverse credibility findings followed; the delegate was not prepared to give the appellant the benefit of the doubt on any of the claimed incidents of harm.
The decision was referred to the Immigration Assessment Authority (the Authority) on 23 August 2016 under s 473CA. On 23 September 2016 the appellant's lawyers provided written submissions and new information in the form of emails exchanged with Mr Witty. Those submissions directly contested the delegate's reliance on the Brookings report and the plausibility findings, asserting that the appellant had been an informant, that his family had suffered harm because of that role, that CTS had been present in Nasiriyah, and that his motivation was rational.
On 29 September 2016 the Authority affirmed the refusal, but on a materially different factual footing. At [20] it accepted that the CTS had operated throughout Iraq, including Nasiriyah, since 2007 and that the appellant had twice witnessed weapons being sold at a house near his own. Nevertheless, the Authority was not satisfied that the appellant had been motivated to become an informant by the specific incident involving the injured child ([22]), nor that his claimed commitment to social justice explained why he would continue after the stabbing and house fire. The Authority considered the appellant's evidence that he only began thinking of stopping after his brother's kidnapping in September 2011 to be inconsistent with earlier claimed threats and with the further year he continued the work ([24]). These concerns led the Authority to reject the appellant's basic claim to have been a CTS informant at all ([28]-[30]). It followed that the Authority did not accept that the subsequent harms (stabbing, house fire, kidnapping, killings of father and brother) were linked to any informant role. Complementary protection claims were also rejected at [75].
The appellant sought judicial review in the Federal Circuit Court. That Court dismissed the application on 30 March 2017, holding that credibility had been a live issue before the delegate, that the Authority was not obliged to notify the appellant of its different reasoning, and that the discretion under s 473DC(3) had not been unreasonably declined. The appellant then appealed to the Full Federal Court on five grounds. Grounds 1-4 concerned the alleged failure to afford procedural fairness or to conduct the review lawfully, and the alleged legal unreasonableness of not exercising the s 473DC(3) power. Ground 5 attacked paragraph 21 of the Authority's Practice Direction (issued under s 473FB) which stated that submissions should be no longer than five pages. After a hearing on 9 August 2017 the Full Court (Reeves, Robertson and Rangiah JJ) delivered a joint judgment on 1 February 2018 dismissing the appeal with costs.
The Full Court's reasoning begins from the proposition that analysis must start with the text and structure of Pt 7AA rather than importing principles developed under the quite different Pt 7 regime ([69]). Section 473DA(1) expressly declares that Div 3, together with ss 473GA and 473GB, is an exhaustive statement of the natural justice hearing rule. Section 473DB(1) requires the Authority to review by considering the review material provided under s 473CB without accepting or requesting new information and without interviewing the referred applicant, subject only to the balance of Pt 7AA. These provisions set the statutory boundaries.
The Court held that Pt 7AA contemplates the Authority will evaluate the delegate's material for itself ([72]). The delegate had made broad adverse credibility findings, rejected the appellant's core claim to have been a CTS informant, and tested the plausibility of his continuing that role after harm to himself and his family. The Authority accepted some matters the delegate had not (CTS presence and witnessing weapons trading) but remained unpersuaded on motivation, commitment to social justice, and the causal links to subsequent harms. Because credibility was already squarely in issue, the Authority's different emphasis did not constitute a "new issue" of the kind discussed in SZBEL. The appellant's lawyers' submission to the Authority had itself recognised that credibility was live and had sought to meet the delegate's plausibility concerns ([22], [77]). No statutory obligation therefore arose to give fresh notice of the Authority's specific reservations or to invite further comment.
The Court rejected the submission that s 473DC(3) is conditioned by common law procedural fairness. Section 473DA excludes such requirements, and s 473DC(2) expressly negates any duty to request or accept new information. The discretion in s 473DC(3) is therefore not enlivened as a matter of course whenever the Authority forms a view differing in detail from the delegate's. The Court noted, however, that there may be cases (exemplified by the relocation issue in CRY16) where it would be legally unreasonable not to consider exercising the power because the Authority is deciding a point the delegate never addressed and additional information is necessary to complete the review ([70]). That situation was not present here; the Authority was simply reassessing the same body of material on an issue (credibility of informant claims) that had always been central.
Ground 5, concerning the Practice Direction, was resolved by close attention to its text and context. The Direction distinguishes submissions (why the applicant disagrees with the delegate or believes a claim was overlooked) from new information and the explanations required by s 473DD ([97]-[100]). Paragraph 21's five-page recommendation for submissions is an efficient-processing measure consistent with the objective stated in s 473FA(1). It does not purport to limit the volume of new information or country information that may be supplied, nor does it prevent an applicant from requesting permission for a longer submission. The solicitor's evidence that he had restricted himself to the bare minimum was characterised as a forensic choice rather than a statutory inhibition ([101]). The Direction therefore neither fetters the powers in ss 473DC and 473DD nor lacks an intelligible justification; it promotes concise, focused argument in a scheme designed for quick, efficient, paper-based review. Non-compliance with the Direction does not invalidate any decision (s 473FB(3)).
Taken together, these considerations led the Court to conclude that the Authority had conducted a lawful review under s 473CC, that no jurisdictional error was shown, and that the Federal Circuit Court had not erred. The appeal was dismissed.
Before the introduction of Pt 7AA, protection visa reviews were conducted by the Refugee Review Tribunal under Pt 7. That Part contained an express obligation under s 425(1) to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. SZBEL had established that, where the Tribunal identified dispositive issues or doubts that the delegate had not treated as live, procedural fairness (reinforced by the statutory invitation obligation) required the Tribunal to draw those issues to the applicant's attention. Section 422B had provided that the Division was an exhaustive statement of natural justice, but the High Court read that provision as not excluding the statutory hearing obligation itself.
Pt 7AA was enacted to create a "limited form of review" for certain fast-track applicants, principally unauthorised maritime arrivals who arrived between 13 August 2012 and 1 January 2014. The statutory language deliberately departs from Pt 7. There is no equivalent of s 425. Instead, s 473DB mandates a review on the papers without requesting new information or conducting interviews. Section 473DA(1) is framed more broadly than its Pt 7 predecessor: Div 3 is taken to be an exhaustive statement of the natural justice hearing rule. Sections 473DC-473DF set out a confined, discretionary mechanism for obtaining new information only in exceptional circumstances (s 473DD) and with procedural safeguards (s 473DE). Section 473FA(1) repeats the objective of efficient, quick, free-of-bias review. Section 473FB empowers practice directions to promote efficient processing.
This judgment confirms that the new scheme achieves its intended narrowing. The Authority is not required to replicate the SZBEL-style dialogue. Credibility assessments may be revisited on the existing material without fresh notice provided the issue was live before the delegate. The discretion under s 473DC(3) is not converted into a duty by general law fairness doctrines. After this decision, decision-makers and practitioners understand that the fast-track review is genuinely "limited". Applicants must put their best case, including any new information meeting the s 473DD criteria, within the initial submission window. The five-page guidance in the Practice Direction is lawful and operates to focus submissions. The judgment thereby reinforces the statutory policy of speed and finality while preserving the Authority's ability to consider new information in exceptional cases.
At [69] the Court states: "In our opinion, the starting point for analysis is not the different regime under Pt 7 and the cases decided in relation to those statutory provisions. Instead, the starting point must be the terms of Pt 7AA..." In plain English, do not begin by asking what the old Tribunal would have done; read the new legislation on its own terms.
The pivotal passage appears at [72]: "In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate." Translation: the Authority is a fresh pair of eyes. It can reach a different conclusion on the same evidence without first warning the applicant, at least where the general topic (here, credibility of the informant claim) was already contested before the delegate.
On the Practice Direction the Court observed at [106]: "In our opinion the evident or intelligible justification for the submission being no longer than five pages is to encourage, legitimately, submissions that are concise." Plain English: asking for short, focused arguments is sensible administration; it does not prevent anyone from supplying the documents or explanations the Act allows.
At [70] the Court left a door open: "Thus there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s 473DC(3)." Translation: while no invitation was required here, there could be cases (for example, where the Authority wants to decide on a completely new legal or factual basis the delegate never considered) where it would be unreasonable for the Authority not even to think about asking for more information.
Section 473DA(1) is quoted at [11]: "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." In plain language, the Act itself lists every fairness obligation the Authority has; courts cannot add extra common-law requirements.
The precedent applies to any fast-track reviewable decision under Pt 7AA where the delegate has put the applicant's credibility in issue in a general sense and the Authority reaches an adverse view on that credibility for reasons that, while not identical, address the same underlying claims. The paradigm is a protection claim whose core narrative (here, secret informant status and consequent harm) is disbelieved both at delegate and Authority level, even if the precise evidentiary planks differ. The Authority may accept some matters the delegate rejected (CTS operational presence, witnessing weapons trading) yet still reject the claim on motivation, plausibility of continued risk-taking, or inconsistency in the applicant's account of when he would have stopped informant activities.
The case is also triggered whenever an applicant challenges the five-page guidance in the Practice Direction. Provided the applicant has not sought and been refused permission for a longer submission, and provided the material actually supplied is considered, the Direction will be upheld as a legitimate efficiency measure. The precedent further applies where the applicant argues that differing emphasis in the Authority's credibility analysis constitutes a "new issue" requiring notification under SZBEL principles; the Full Court has made clear that such arguments will fail because SZBEL belongs to the Pt 7 world.
Conversely, the judgment recognises that different facts could engage legal unreasonableness. If the Authority proposes to affirm on a basis (for example, relocation, or a legal criterion) the delegate never addressed and for which further evidence or submissions would obviously be relevant, the Authority may be required at least to consider exercising the s 473DC(3) power. The precedent therefore draws a line between re-evaluation of live issues on existing material (no further step required) and decision on a fresh point (possible obligation to consider seeking more information).
Although the present judgment post-dates the primary authorities it cites, it has become the authoritative statement of the limits of procedural fairness under Pt 7AA. It has been treated as confirming that the exhaustive-statement provision in s 473DA(1) precludes importation of SZBEL-style obligations. Later courts have cited the passage at [72] for the proposition that the Authority is entitled to form its own view of the delegate's material without fresh notice, provided credibility or the relevant factual issue was alive before the delegate. The distinction drawn between re-assessment of live issues and decision on a wholly new point (referring to CRY16 at [70]) has been applied to confine the circumstances in which legal unreasonableness can arise from a failure to consider exercising s 473DC(3).
The treatment of the Practice Direction at [96]-[107] has been accepted as settling that the five-page guidance is a valid administrative direction promoting efficiency. Subsequent decisions have rejected arguments that the Direction impermissibly fetters the supply of new information or the s 473DD explanations that must accompany it. The judgment's emphasis on reading the Direction in light of its introductory paragraph (that it sets out requirements for applicants and representatives) has been followed to avoid over-literal interpretations that would treat the five-page statement as an absolute bar.
Overall, the decision has been followed for the proposition that Pt 7AA creates a materially narrower procedural regime than Pt 7, that the Authority's review function is evaluative rather than dialogic, and that practice directions issued under s 473FB receive a wide margin of appreciation provided they remain consistent with the Act.
The judgment expressly leaves open when exactly it will be legally unreasonable for the Authority not to consider exercising the s 473DC(3) power. The example given is a case in which the Authority decides a point the delegate never addressed and for which further information is necessary ([70]). The precise boundaries of that category remain to be worked out. Is internal relocation a sufficiently new point? What about a country-information update that post-dates the delegate but is not "new information" within s 473DC(1)? The Court did not need to decide these questions on these facts.
A further open question is the interaction between the Practice Direction and genuinely voluminous new country information. The Court accepted that the Direction does not limit new information itself, yet in practice an applicant may need many pages to identify, extract and explain multiple reports. Whether an Authority that returns a lengthy but necessary explanatory submission without reading it could be said to have acted unreasonably was not before the Court.
The judgment does not explore the outer limits of "exceptional circumstances" under s 473DD(a). While it confirms that the Authority is not obliged to seek new information, it does not address how stringently that gateway should be applied when highly probative material is proffered that could not have been given to the delegate. Nor does the decision resolve whether the Authority's obligation to "review" under s 473CC(1) could, in an extreme case, require it to get information even though s 473DC(2) says there is no duty to do so. These issues await future litigation in more complex factual settings.
Finally, the Court did not consider whether the Authority's letter of 23 August 2016 (which enclosed the Practice Direction) itself created any legitimate expectation. The Minister contended that no such letter was required by Pt 7AA; the Full Court did not need to decide the point because it held the Authority had acted lawfully in any event. The status of such administrative communications therefore remains technically open, although the judgment's overall tenor suggests they do not enlarge the statutory procedural obligations.
Introduction 1 This appeal is from the judgment of the Federal Circuit Court of Australia, delivered on 30 March 2017, dismissing the present appellant's application to that Court, with costs. That application was for judicial review of a decision of the Immigration Assessment Authority (the Authority), made on 29 September 2016, affirming the decision of a delegate of the Minister for Immigration and Border Protection (the Minister) not to grant the appellant a protection visa. 2 The appellant claimed to be a Shia Muslim from Nasiriyah, Iraq. On 20 January 2016, he lodged an application for a Safe Haven Enterprise visa (SHEV). The delegate refused to grant the visa on 19 August 2016. 3 The issues arise under Pt 7AA of the Migration Act 1958 (Cth), the heading to which is "Fast track review process in relation to certain protection visa decisions". 4 The appellant claimed he was a secret informant for the Counter Terrorism Service (CTS) which formed part of the Iraqi security services. In that capacity, he claimed that he provided the CTS with information on weapons trading networks associated with militias and extremist groups in Iraq. He claimed that, as a result of the information he provided, a number of weapons traders were arrested and imprisoned. He claimed to fear harm and therefore warranted protection status on the basis of the following claims. First, in October 2010, he was stopped and stabbed on his arms in the market and began to receive threatening messages at home by phone. Secondly, in January 2011, his family's home was burnt. Thirdly, in September 2011, his younger brother was kidnapped and released after a week when a ransom was paid with the proceeds from selling the family home. Fourthly, his family was threatened. Finally, the appellant claimed that after he had left Iraq in 2012, his father was killed in January 2013 and his brother was killed in June 2013. The appellant believed that these incidents were carried out by members of the weapons trading networks because of his work as a secret informant. The appellant claimed that he feared being killed by militias who believed he was responsible for informing on their members, resulting in their arrest and imprisonment.
The statutory provisions 5 A "fast track applicant" and a "fast track decision" are defined in s 5 of the Migration Act as follows: fast track applicant means: (a) a person: (i) who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and (ii) to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and (iii) who has made a valid application for a protection visa in accordance with the determination; or (b) a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b). Note: Some unauthorised maritime arrivals born in Australia on or after 13 August 2012 may not be fast track applicants even if paragraph (a) applies: see subsection (1AC) fast track decision means a decision to refuse to grant a protection visa to a fast track applicant, other than a decision to refuse to grant such a visa: (a) because the Minister or a delegate of the Minister is not satisfied that the applicant passes the character test under section 501; or (b) relying on: (i) subsection 5H(2); or (ii) subsection 36(1B) or (1C); or (iii) paragraph 36(2C)(a) or (b). Note: Some decisions made in the circumstances mentioned in paragraph (a), or subparagraph (b)(i) or (iii), of the definition of fast track decision are reviewable by the Administrative Appeals Tribunal in accordance with section 500. 6 By s 473BB, "fast track reviewable decision" means: (a) a fast track decision in relation to a fast track review applicant; or (b) a fast track decision determined under section 473BC; but does not include a fast track decision in relation to which the Minister has issued a conclusive certificate under section 473BD. Note: Fast track decisions are decisions (subject to some exceptions) to refuse to grant protection visas to certain applicants, known as fast track applicants. Some specified fast track applicants are known as excluded fast track review applicants; all others are known as fast track review applicants. The highlighted terms are defined in subsection 5(1). 7 Section 473BA of Pt 7AA provides an outline of the review process relating to fast track decisions: 473BA Simplified outline of this Part This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions. Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants. Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants. Fast track reviewable decisions must be referred by the Minister to the Immigration Assessment Authority as soon as reasonably practicable after a decision is made. A person cannot make an application for review directly to the Immigration Assessment Authority. Decisions to refuse to grant protection visas to fast track applicants are generally not otherwise reviewable under this Act, although some decisions are reviewable by the Administrative Appeals Tribunal. The Immigration Assessment Authority consists of the President of the Administrative Appeals Tribunal, the head of the Migration and Refugee Division of the Tribunal, the Senior Reviewer and other Reviewers. The President and that Division head are responsible for the overall administration and operation of the Immigration Assessment Authority. The Senior Reviewer is appointed by the President or that Division head. The Senior Reviewers and other Reviewers are engaged under the Public Service Act 1999. In reviewing fast track reviewable decisions, the Immigration Assessment Authority is required 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). The Immigration Assessment Authority does not hold hearings and is required to review decisions on the papers that are provided to it when decisions are referred to it. However, in exceptional circumstances the Immigration Assessment Authority may consider new material and may invite referred applicants to provide, or comment on, new information at an interview or in writing. The Immigration Assessment Authority may affirm a referred decision or may remit the decision for reconsideration in accordance with directions. The Immigration Assessment Authority may give directions restricting the disclosure of information. There are also specific requirements for the giving and receiving of documents. 8 By s 473CA: The Minister must refer a fast track reviewable decision to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made. 9 By s 473CB: (1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA: (a) a statement that: (i) sets out the findings of fact made by the person who made the decision; and (ii) refers to the evidence on which those findings were based; and (iii) gives the reasons for the decision; (b) material provided by the referred applicant to the person making the decision before the decision was made; (c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review; … (2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority. 10 By s 473CC: (1) The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA. (2) The Immigration Assessment Authority may: (a) affirm the fast track reviewable decision; or (b) remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation. 11 Division 3 of Pt 7AA was in the following terms: Division 3 - Conduct of review Subdivision A - Natural justice requirements 473DA Exhaustive statement of natural justice hearing rule (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. Subdivision B - Review on the papers 473DB Immigration Assessment Authority to review decisions on the papers (1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB: (a) without accepting or requesting new information; and (b) without interviewing the referred applicant. (2) Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority. Note: Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)). Subdivision C - Additional information 473DC Getting new information (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. 473DD Considering new information in exceptional circumstances For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims. 473DE Certain new information must be given to referred applicant (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. Note: Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65. 473DF Invitation to give new information or comments in writing or at interview (1) This section applies if a referred applicant is: (a) invited under section 473DC to give new information in writing or at an interview; or (b) invited under section 473DE to give comments on new information in writing or at an interview. (2) The information or comments are to be given within a period that is prescribed by regulation and specified in the invitation. (3) The Immigration Assessment Authority may determine the manner in which, and the place and time at which, an interview is to be conducted. (4) If the referred applicant does not give the new information or comments in accordance with the invitation, the Immigration Assessment Authority may make a decision on the review: (a) without taking any further action to get the information or the referred applicant's comments on the information; or (b) without taking any further action to allow or enable the referred applicant to take part in a further interview. 12 Division 5 of Pt 7AA was in the following terms: Division 5 - Exercise of powers and functions by Immigration Assessment Authority 473FA How Immigration Assessment Authority is to exercise its functions (1) The Immigration Assessment Authority, in carrying out its functions under this Act, 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). Note: Under section 473DB the Immigration Assessment Authority is generally required to undertake a review on the papers. (2) The Immigration Assessment Authority, in reviewing a decision, is not bound by technicalities, legal forms or rules of evidence. 473FB Practice directions (1) The President may, in writing, issue directions, not inconsistent with this Act or the regulations as to: (a) the operations of the Immigration Assessment Authority; and (b) the conduct of reviews by the Authority. (2) Without limiting subsection (1), the directions may: (a) relate to the application of efficient processing practices in the conduct of reviews by the Immigration Assessment Authority; or (b) set out procedures to be followed by persons giving new information to the Authority in writing or at interview. (3) The Immigration Assessment Authority must, as far as practicable, comply with the directions. However, non-compliance with any direction does not mean that the Authority's decision on a review is an invalid decision. (4) If the Immigration Assessment Authority deals with a review of a decision in a way that complies with the directions, the Authority is not required to take any other action in dealing with the review. (5) The Immigration Assessment Authority is not required to accept new information or documents from a person, or to hear or continue to hear a person at an interview, if the person fails to comply with a relevant direction that applies to the person. …
The decision of the delegate 13 The appellant attended a protection visa interview on 12 July 2016. The delegate said his responses at interview were generally consistent with his written statement of claims. However, overall, the delegate was not satisfied that the appellant's "core claims regarding him being an informant to the Counter Terrorism Service are plausible." 14 The delegate refused to grant the appellant a SHEV on the basis that, inter alia, he did not satisfy the criteria for a grant of a protection visa under s 36(2)(a) and s 36(2)(aa) of the Migration Act. 15 The delegate's reasons include a reference to a 2015 report by David Witty titled "The Iraqi Counter Terrorism Service" for the Center for Middle East Policy of the Brookings Institution. From that report the delegate concluded that, contrary to the appellant's claim, the CTS did not have any regional commando battalions located in his area until Spring 2013, and therefore not until after the appellant departed Iraq in July 2012. The delegate set out the appellant's responses when a summary of this information was put to him. 16 The delegate said: After careful consideration, I find that there was no counter-terrorism office in Nasiriyah during the period claimed by the applicant. It therefore follows that I find that the applicant was not an informant about counter-terrorism matters to the CTS. It also follows that I do not accept that the applicant was targeted because of any claimed involvement as an informant. Further to my finding that there was no CTS office in Nasiriyah, which significantly undermines the credibility of the applicant's claims to have been a CTS informant, I have placed weight on the following matters which are detailed below: • The applicant's unclear testimony regarding what the applicant saw in his local area which made him decide to report weapons trading to Ayad Ali; and • The implausible risk in which the applicant claims to have put both himself and his family by becoming and continuing to be an informant. 17 In relation to the first of these two matters the appellant stated that more than one incident happened in his area including killings and an explosion. He stated that there was an explosion in Nasiriyah in which a child lost his leg. The appellant later showed a photograph on his mobile telephone of a child bleeding and missing a leg. He stated that since this explosion happened he decided to work against these people to protect the people he knew. 18 In relation to the second of these matters, the delegate said as follows: I asked the applicant why he would risk his life by becoming an informant. In response, he stated words to the effect that he considered he was doing the right thing by saving people's lives. He stated he was proud of what he was doing. The applicant again referred to the incident in his area involving the injury of a boy that he knew, showing a photograph of him bleeding and missing one leg. I asked the applicant why, noting his commitment to social justice that he would continue to risk his own life and the safety of his family, in particular after his house was burnt out. He stated that he considered this a normal thing in order to protect the safety of the community. He stated that he knew the government would protect him because he was not doing anything wrong. The applicant stated that after his brother was kidnapped in September 2011 he considered stopping being an informant. Considered cumulatively, I am not satisfied that the risk in which the applicant claims to have put himself and his family is plausible, in that I do not accept that a reasonable person would continue to be an informant for altruistic reasons after being personally attacked and having his home burnt out. 19 The delegate also gave consideration to what he described as "inconsistencies" in the appellant's claims. 20 In relation to claimed incidents of past harm, the delegate was not willing to extend the benefit of the doubt to the appellant in accepting that he was attacked in 2010 "given the overall credibility issues and internal inconsistency within this claim." The delegate was not satisfied that the appellant was targeted for the reasons he claimed, nor had the appellant put forward any other reasons as to why his family members would be targeted. The delegate said: Overall, given the significant credibility issues surrounding the applicant's claim to have been a 'secret agent' for the CTS, I am not prepared to give the benefit of the doubt in accepting that he was targeted for this, or any other reason claimed prior to his departure from Iraq. In summary, in relation to the applicant's claimed experiences of past harm, I do not accept that he was attacked in a marketplace; nor do I accept that his house was burnt out; and nor do I accept that the applicant's family members were targeted for any of the reasons claimed.
The decision of the Authority 21 On 23 August 2016 the decision of the delegate was referred to the Authority for review pursuant to s 473CA of the Migration Act. 22 On 23 September 2016 a submission was made to the Authority by lawyers on the appellant's behalf. The submission took issue with a key finding of the delegate based on Mr Witty's 2015 report for the Brookings Institution and enclosed emails between the lawyers on behalf of the appellant and the author of that report, Mr Witty. The submission also took issue with the delegate's finding as to the "implausible risk" of the appellant being an informer. The submission concluded by stating that the appellant had established the following: • He was an informant to security forces in Iraq against gangs and militias • His brother was kidnapped because of his activities as an informer • His house was burnt because he was an informer • His brother and father were killed because he was an informer • There was a presence of security forces receiving information in Nasiriyah for what is now called the CTS • His motivation to be an informer was sparked by seeing the aftermath of a bomb attack that left children dead and also by a desire to improve law and order in his country • Such a motivation is rational and reasonable 23 On 29 September 2016 the Authority decided to affirm the decision under review. 24 Contrary to a major premise of the delegate's decision, the Authority accepted that the CTS operated throughout Iraq, including Nasiriyah since 2007. The Authority also accepted, at [20], that the appellant had "witnessed people selling weapons at a house which was close to his place twice as claimed, and that his friend who lived opposite to where weapons were traded also witnessed weapons trading." 25 The Authority then considered the appellant's claim, made at the SHEV interview, that he was motivated to fight against weapon traders because he saw a child from his area who had lost his leg during an explosion in Nasiriyah. The Authority, at [22], was not satisfied on the evidence that the appellant was motivated to be an informer because he witnessed an explosion which resulted in the child in the photo losing his leg. This was because the appellant did not raise this claim at the entry interview in 2012, or his previous subclass 866 permanent protection visa application made in 2013 or his SHEV application. 26 The Authority then referred to the appellant being asked why he would continue to risk his life in continuing to work with the CTS given his claims that he was stabbed in late 2010 and that his house was burnt at the beginning of 2011 because he was targeted. The Authority noted the appellant's response, which the Authority referred to as the appellant's commitment to social justice. The Authority then referred to the appellant's statement that after his brother was kidnapped in September 2011 he started to think about ceasing to provide information to the CTS as he did not want to subject his family to danger because the people against whom he was fighting were criminals without human feelings. This suggested, the Authority said, that the appellant would not be willing to subject his family to dangers despite his claimed commitment to social justice and the incidents and weapons trading activities that he or his friend had witnessed in the past. 27 The Authority said, at [24], that this was at odds with the appellant's claims that he continued to work with the CTS after the stabbing incident and the house fire. The Authority did not accept that the appellant would only start to think about stopping to work for the CTS after his brother was kidnapped in September 2011, almost a year since the appellant claimed to have received threats at home. In addition, the Authority said, the appellant claimed that he stopped working for the CTS around late 2011 or the beginning of 2012. The Authority said, at [24], that if the appellant did not wish to subject his family to dangers, he would have stopped working for the CTS much earlier than he had claimed. The Authority was not convinced that the appellant had been truthful in regard to his claimed commitment to social justice or his reasons for joining the CTS. 28 The Authority said, at [26]: … given my concerns above in relation to the applicant's evidence regarding his motivation to join CTS and his personal values and commitment to social justice, I am not satisfied on the evidence before me that this applicant was motivated to join the CTS for the reasons claimed, or that he was so committed to social justice to the extent that he would be willing to risk his or his family's lives by working for the anti-terrorism service as a secret informant. 29 Next, at [28], the Authority said it was not satisfied on the evidence that the appellant's basic knowledge of the CTS established that he worked for the CTS as an informant as claimed. At [30], the Authority said it was not satisfied that the appellant provided information regarding weapons trading to a named CTS captain or the CTS as claimed. The Authority did not accept that the appellant was involved in or joined the anti-terrorism squad, the CTS or any other organisations as a secret informant. It followed that the Authority did not accept that a secret code was created for him or that this information was kept in the CTS captain's office or by a judge in the Nasiriyah court. 30 The Authority then went on to consider the claim that the appellant was stabbed by unknown people in October 2010. The Authority, at [34], accepted that the appellant's elbows and fingers were injured but was not satisfied that those injuries resulted from an attack in 2010 as claimed; that the appellant was attacked or stabbed in October 2010 for the reasons claimed; or that his injuries resulted from his actual or imputed connection or association with the CTS captain or the CTS. 31 In relation to the appellant's claims in respect of receiving threatening messages by phone at home since 2010 and the burning of his family home in 2011, the Authority, at [37], was prepared to accept that the appellant's home was burnt in 2011, but was not satisfied on the evidence that the appellant began receiving threatening messages "since 2010"; or that his home was burnt by men who were associated with groups that engaged in weapons trading; or that it was burnt for any reasons relating to the appellant's actual or perceived association or involvement with the CTS captain or the CTS. 32 The Authority next considered the claim that the appellant's younger brother was kidnapped in September 2011 and held for a week. The Authority did not accept, at [44], that the kidnappers perceived or suspected that the appellant was involved with the CTS, the CTS captain, or any informant related activities; or that his brother was kidnapped for any reasons relating to the appellant's actual or imputed association with the CTS captain or the CTS or any anti-terrorism movements. 33 In relation to claims that, after his brother was released, the appellant's father received threatening messages on his phone and that his father asked the appellant to stay away from home, sell his shop and move to his maternal uncle's place in Al Shatra, at [47] the Authority accepted that the appellant moved to his uncle's place but did not accept that he moved there due to the claimed threats, incidents or to avoid harm. The Authority said, at [48]: Given my concerns in relation to the applicant's evidence, I do not accept that the applicant or his family received any threats from anyone after his brother was released. It follows that I do not accept that his father asked him to leave Nasiriya, sell the shop, or move to Al Shatra because his family received threats, or that the applicant moved to Al Shatra to avoid harm. 34 In relation to the appellant's claims that his father and older brother were shot and killed by unknown persons in January 2013 and June 2013 respectively, the Authority, at [54], considered it speculative to attribute their deaths to anyone or any reason. The Authority was not satisfied that the appellant's father's or brother's death was related to the appellant's actual or perceived involvement, work or association with the CTS, the CTS captain or anyone related to weapons traders or weapons trading networks. 35 The Authority, at [59], did not accept the claims that after the appellant left Iraq in July 2012 his family received threats or that anyone had approached or questioned them about the appellant. The Authority was not satisfied that the appellant was, or his family had been, of adverse interest to anyone. 36 The Authority, at [64], was not satisfied that the appellant had a well-founded fear of persecution for reasons relating to any actual or perceived association, connection, views or involvement with anti-terrorism organisations, the CTS, the CTS captain or anyone. 37 The Authority considered whether the appellant would face a real chance of harm as a result of the general security situation, or on the basis of being a Shia Muslim in Iraq upon return. The Authority concluded, at [65]-[72] that he would not. 38 The Authority also made a complementary protection assessment but found, at [75], that the appellant did not have a real risk of suffering harm on return to Iraq for the purposes of s 36(2)(aa).
The decision of the primary judge 39 The primary judge said, at [104], that the letter sent by the Authority to the appellant dated 23 August 2016 provided an explanation to the appellant in relation to the nature of the review and provided the appellant with an opportunity to put on submissions as well as to provide new information. It was apparent from the delegate's decision that the credibility of the appellant was a live issue. The appellant's submissions to the Authority reflected a recognition of that credibility issue. On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review. 40 At [105]-[108], the primary judge said there was no request for the Authority to exercise the power under s 473DC(3), which was a discretionary power. The present case fell well short of engaging any obligation upon the Authority to exercise the power under s 473DC(3). The nature of the review under Pt 7AA was different to that which was conducted under Pt 7. The review under Pt 7AA Div 3 was subject to the provisions in s 473DC, s 473DE and s 473DF to be conducted on the papers. The Authority was not bound by the findings or reasoning of the delegate. 41 The primary judge did not accept that the Authority was required to inform the appellant of specific reservations about the appellant's case and to provide the appellant with an opportunity to respond. Further, in the present case, the appellant's credit was clearly identified as a relevant issue and he had an opportunity and took advantage of that opportunity and put submissions in relation to his credit. It was not necessary in the circumstances of the present case for the Authority to deliberate upon in its reasons the exercise of the power under s 473DC. The primary judge rejected the submission that it was necessary for the Authority to give the appellant notice of the Authority's reservations or possible adverse findings in relation to his credit as to whether he was an informant, an issue that was patently live and apparent from the decision of the delegate. 42 The primary judge next rejected, at [109] - [111], the submission that because the Authority had decided that the appellant did not satisfy the requirements of s 5A(1)(a) for reasons that were not disclosed to him and of which he could not have been aware, the failure to exercise the power under s 473DC(3) was legally unreasonable and that the Authority should have invited a written response or interview in relation to the issues that the Authority saw as being relevant to the review. 43 The primary judge said it was apparent that the issue of the appellant's credit was a live issue before the delegate. There was no obligation in the present case upon the Authority to give the appellant notice in respect of findings or reasoning departing from those of the delegate in relation to his credit. Where the issue of the appellant's credit had been a live issue, the primary judge did not regard the Authority's reservations in relation to the appellant's credit for different reasons as requiring the Authority acting reasonably to consider the exercise of the power under s 473DC(3) in the present case. The fact that the Authority made no reference to s 473DC(3) was consistent with the absence of any submission put to the Authority in that regard. It did not support the inference that the Authority was unaware of or ignored its powers under s 473DC. 44 The primary judge also rejected, at [112]-[114], the appellant's alternative argument that it was the requirements of natural justice that required exercise of the powers conferred under s 473DC(3) of the Act and that these requirements of procedural fairness were not excluded by s 473DA or s 473DC(2). The primary judge accepted that the discretion under s 473DC(3) remained subject to scrutiny before the Court on the grounds of legal unreasonableness, but it did not follow that the common law requirements of procedural fairness had not been excluded by those provisions. There was no requirement as a matter of procedural fairness on the Authority to exercise its powers under s 473DC(3) where departing from the findings or the reasoning from the delegate. 45 Lastly, at [115]-[118], the primary judge rejected the appellant's attack on particular findings made by the Authority as being arbitrary or unreasonable.
The grounds of appeal 46 The appellant's grounds of appeal were in two parts. We consider Ground 5, the second part, at [79]-[107] below. The first part concerned Grounds 1-4 which were in the following terms.
Grounds 1-4 47 These grounds were as follows. 1. The Court Below erred in finding; a) That the delegate's decision indicated that all aspects of the appellant's credit were at issue in the IAA's review, and, b) That there was an opportunity to address relevant issues of credit in submissions to the IAA. 2. The Court Below erred in finding that the second respondent (the IAA) conducted a review as required by s. 473CC(1) of the Migration Act. Particulars a) It was necessary in the conduct of the IAA's review, in the context of the governing statute and the facts of this case for the IAA to give the appellant notice of any new issues arising on the review and give him a realistic opportunity to respond. b) The IAA's failure to disclose those issues and afford the appellant a reasonable opportunity to respond constituted a failure to lawfully conduct its review. 3. The Court Below erred in holding that the IAA did not act in a manner that was legally unreasonable in failing to inform the appellant of the issues that it considered to arise on the review, insofar as those issues were not found to be dispositive by the delegate, and to invite comment or new information to address those issues pursuant to s. 473DC(3) of the Migration Act. 4. The Court Below erred in holding that s 473DA of the Migration Act excluded the requirement that the IAA comply with the requirements of procedural fairness in deciding whether the (sic) disclose the issues that arose on its review and to invite a response pursuant to s. 473DC(3). Particulars The Court should have found that; (a) procedural fairness was a condition attached to the exercise of the discretion in s. 473DC(3) and was therefore not excluded by s. 473DA(1), and that; (b) A fair exercise of the power in s. 473DC(3) required the IAA to disclose to the appellant its specific reservations about the appellant's case and to invite a response pursuant to s. 473DC(3).
The Minister's notice of contention 48 The Minister filed a notice of contention, as follows. 1. In rejecting grounds two, three and four of the further amended application, the primary judge ought to have held as follows: (a) The principles espoused by the High Court of Australia in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 have no application to the conduct of reviews by the Immigration Assessment Authority (Authority) conducted under Part 7AA of the Migration Act 1958 (Cth) (Act). The effect of section 473DA(1) is that Part 7AA exhaustively states the requirements of the natural justice hearing rule in relation to the conduct of reviews by the Authority. (b) The Appellant identified no obligation in Division 3 of Part 7AA of the Act that the Authority breached. (c) Section 473DC(2) of the Act operated to defeat any allegation of procedural unfairness on the part of the Authority by its not having exercised its discretion under section 473DC(3). 2. In rejecting grounds two and four of the further amended application, the primary judge ought to have held that the Authority was under no obligation to send to the Appellant the correspondence cited at [104] and [114] of the Judgment.
The parties' submissions on Grounds 1-4 49 The appellant acknowledged that Ground 1 could not be read independently of Grounds 2, 3 4. It was however necessary for the appellant to succeed on Ground 1 to be able to succeed on those other grounds. 50 The appellant submitted that both the delegate and the Authority dealt with the appellant's matter by focusing on his credit. Except for one factor, being disbelief that the appellant would subject his family to danger associated with his being a CTS informant, the reasons for doing so were entirely different. The delegate's primary finding was that the CTS did not exist in Nasiriyah during the period claimed by the appellant and so the appellant could not have been an informant for it. No other part of his claim could have survived that finding, although the delegate also found fault with his account of seeing arms traffickers and the issue of whether he would subject his family to risk. 51 The Authority, on the other hand, accepted what the delegate did not - that the CTS did operate in Nasiriyah at the relevant time and that the appellant did witness arms trading. The Authority did not however accept the motive put forward by the appellant for becoming or being a CTS informant, that being that he saw a child whose leg had been blown off in an explosion, or that he would subject his family to danger. Nor did it accept that the family would continue to live in a house which had been attacked or that the appellant would potentially expose himself to his brother's kidnappers by paying a ransom. 52 The appellant submitted that the issues in the review could not be anything other than the specific claims or pieces of evidence about which the reviewer had doubts or reservations. It was also relevant to observe that findings on credit can accumulate. A finding that a person is untruthful about one fact may suggest that he is being untruthful about others. The primary judge was thus incorrect in characterising the "issue" as being that of the appellant's credibility. Moreover, the primary judge did not fully engage with the appellant's submissions on his other grounds because of that error. 53 After referring to the terms of s 473DC, the appellant submitted that s 473DC(3) permitted the Authority a discretion to invite a person to give new information either in writing or at an interview. He submitted that s 473DC(2) said nothing about there being no duty to inform a referred applicant of a new issue which may be dispositive in the review. 54 As to Ground 2, the appellant submitted that the requirement to review a decision necessitated drawing the appellant's attention to the issues arising on the review, given that those issues had not been raised in the delegate's decision. Unless this was done, the appellant's claims or explanation as to relevant issues would be missing and the Authority would be deprived of an essential ingredient in the review process. 55 As to Ground 3, the appellant submitted that reasonableness was closely related to procedural fairness. The fact that the appellant was aware of the matters found dispositive by the delegate and given an opportunity to comment on them, and that there was no requirement to hold an interview, led to a conclusion that it was unreasonable for the Authority not to inform the appellant of the issues arising on the review. The Authority was in effect saying: "I will let you comment on the issues the delegate thought were important, but I might see other issues, but I will not tell you about these". If there was a duty to inform the referred applicant of the new issue, it would be unreasonable not to invite a response pursuant to s 473DC(3). 56 As to Ground 4, the appellant submitted that whilst the general power to make a decision in s 473CC was restricted by s 473DA, consideration and exercise of the discretion in s 473DC(3) was itself conditioned by natural justice. The plain words of s 473DA did not go so far as to exclude the principles of natural justice from conditioning the discretions in s 473DC. The appellant submitted that s 473DC(2) must be read as requiring the discretion in s 473DC(1) and s 473DC(3) to be addressed in accordance with the requirements of natural justice. The discretion inherent in s 473DC(3) required that the Authority disclose the issues that it saw as dispositive of the review, and invite a response, either in writing or at interview. 57 The appellant provided a submission in the form of a table comparing the factual findings of the delegate and of the Authority. This was as follows: Delegate's Finding Authority's Finding There was no CTS office in Nasiriyah during the period claimed by the appellant. Therefore the appellant was not an informant. Accepted that the CTS operated in Nasiriyah in 2007. Disbelieved the appellant's claim to have personally witnessed arms sales. Accepted that the appellant personally witnessed arms sales. Implausible that the appellant would confront the person in a house where weapons were being stored in the manner described by him at interview. Not satisfied that the risk the appellant claims to have put he and his family in by becoming an informant is plausible. Given concerns about the evidence of his motivation for becoming an informant (seeing a boy with his leg blown off) the Authority was not satisfied that he was motivated to join the CTS for the reasons claimed, or that he would be willing to risk his and his family's lives by doing so. There were inconsistencies in his claims about who carried out arrests of weapons traders. There were discrepancies in the evidence of the sale price of the family home. They were discrepancies in the evidence of how much the appellant was paid as an informant. Not willing to give the appellant the benefit of the doubt about being attacked given the overall credit issues and internal inconsistency within the claim. Given concerns about inconsistent evidence about the alleged attack on him the Authority was not satisfied that he sustained injuries as a result of being attacked because he was an informant. Given overall credibility issues not satisfied that the appellant or his family were targeted. Had the appellant's family believed that their home was burned because the appellant was an informant it is unlikely that they would fix it and continue living in it. If the appellant's brother was kidnapped for reasons associated with his actual perceived association with the CTS, the kidnappers would have targeted the appellant when they met up to pay the ransom. It is also implausible the appellant and his father would have met the kidnappers to pay the ransom. The Authority was not satisfied that the deaths of the appellant's father and brother were related to his actual or perceived involvement with the CTS.
58 The Minister submitted that nowhere in Pt 7AA was there a provision that required the Authority to put a referred applicant on notice of the issues arising on the review or to invite him to an interview for that purpose. There was no equivalent to s 360(1) or s 425(1) which applied to the Administrative Appeals Tribunal. Here, s 473DB(1)(b) operated generally to prevent the Authority, in reviewing a fast track reviewable decision, from interviewing an applicant. Nor could the duty be implied in s 473CC(1). Section 473DA(1) left no room for the operation of common law principles of procedural fairness, particularly that part of the hearing rule that required an applicant to be put on notice of the critical issues or factors on which the decision was likely to turn which was not apparent from its nature or the terms of the statute under which it was made. Nor did s 473DA(1) permit the introduction of the principle articulated in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152. SZBEL was not only a case that concerned the construction of s 425(1), the equivalent of which was absent from Pt 7AA, but also one to which s 422B(1) did not apply. 59 In any event, the Minister submitted, the present case was not one in which a new issue arose or in which an issue considered dispositive by the Authority was not considered dispositive by the Minister's delegate. None of the appellant's claims could have survived the delegate's finding that the CTS did not exist in his home region and that, therefore, he could not have been an informant for that group. The delegate made broad adverse credibility findings and rejected the appellant's entire case. Thus the delegate's decision sufficiently indicated to the appellant that everything he said in support of his application was in issue: cf SZBEL at [47]. Unlike SZBEL, in which the former Refugee Review Tribunal rejected what Minister's delegate did not reject, the Authority accepted what the delegate did not. No issue that the delegate considered to be in question was not in question before the Authority. The primary judge was correct so to hold, at [104], [107] and [108]. 60 The Minister submitted that the appellant did not identify what "new" issue(s) arose on the review but merely suggested that the reasons given by the Authority for rejecting his claims for protection differed from those of the Minister's delegate: whereas the delegate made a finding that undermined the entirety of his case, the Authority's findings and reasons were more nuanced. This was very different from saying that a new issue arose on the review. 61 Since the Authority was not under an obligation to put the appellant on notice of the dispositive issues on the review, it was not legally unreasonable not to exercise the power in s 473DC(3) to invite the appellant to give new information. Further, the appellant's complaint of legal unreasonableness concerned a discretion that had not yet been exercised. That was not a decision that was reviewable. The discretion in s 473DC(3) was not to be read as coupled with a duty. 62 As to the procedural fairness ground, the Minister submitted that in circumstances where the provisions in Div 3 of Pt 7AA exhaustively stated the requirements of the natural justice hearing rule, the discretionary powers in ss 473DC(1) and (3) could not be said to be conditioned by general law notions of procedural fairness. The clear statement in s 473DC(2) defeated any allegation of procedural unfairness by the Authority not exercising its power in s 473DC(3). 63 In relation to his notice of contention, insofar as those contentions had not been articulated in the submissions already put, the Minister submitted that the primary judge erred in holding that the Authority discharged its procedural fairness obligations by notifying the appellant, by letter dated 23 August 2016, of the fact of the referral of the delegate's decision to the Authority, and enclosing with that letter a fact sheet and a copy of the Practice Direction for Applicants, Representatives and Authorised Recipients dated 21 April 2016 issued by the President of the Administrative Appeals Tribunal (the Practice Direction). The Minister submitted that Pt 7AA did not require this but it was done as a matter of good administration. 64 In reply, the appellant submitted that the Minister adopted an artificial distinction between "reasons" and "issues". The Authority's credit findings were substantially different to those of the delegate. It was those findings, with the exception that it was implausible that a person would put themselves in danger by becoming an informant, which comprised the issues not disclosed to the appellant. 65 In deciding what was required by a Pt 7AA review a distinction should be drawn between what the Authority was required to do in conducting a review, what it was permitted to do, and what it was prohibited from doing. There was no prohibition against disclosing a fresh issue to the appellant. In the context of the statutory scheme, where the appellant and the Authority knew the reasons of the delegate, and could submit, or get, new information as defined in s 473DC(1), the disclosure of fresh issues to a referred applicant together with an invitation to address those issues by submissions was an incident of the objective of coming to the correct or preferable decision. Thus a requirement that the Authority disclose new issues and invite a response was implied into s 473CC. 66 The appellant submitted that the starting point for Ground 3 was the implication of the requirement of reasonableness into the exercise of a statutory power. The statutory power was that of review. If there was to be a disclosure of a new issue it would follow that a response should be invited. It was not necessary that the response be invited pursuant to s 473DC(3). 67 In relation to Ground 4, the appellant submitted that where s 473DC(2) must be read down to accommodate the implied duty to accept and consider new information, the last five words of s 473DC(2) were not sufficient to exclude natural justice from conditioning the discretion under s 473DC(3).
Analysis 68 We turn to consider these submissions. 69 In our opinion, the starting point for analysis is not the different regime under Pt 7 and the cases decided in relation to those statutory provisions. Instead, the starting point must be the terms of Pt 7AA and, subject to Pt 7AA, the obligation on the Authority to review a fast track reviewable decision by considering the review material without accepting or requesting new information and without interviewing the referred applicant: s 473DB(1). Also, by s 473DA, Div 3 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. In our view, SZBEL is not the appropriate starting point. 70 It is to be noted that the present case is not one where the Authority has decided a point which was not the point decided by the delegate, but rather one where additional information is necessary in order to complete the review. We refer to Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, where the Authority affirmed the decision of the delegate to refuse to grant the SHEV but on the different basis of relocation which the delegate had not addressed. Thus there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s 473DC(3). 71 In the present appeal, in our opinion, the Authority reassessed the material which the delegate had considered. The delegate did not accept the appellant's claims largely because of the delegate's finding that there was no CTS office in Nasiriyah during the period claimed by the appellant, which significantly undermined the credibility of the appellant's claims to have been a CTS informant. The delegate referred to "the significant credibility issues surrounding the applicant's claim to have been a 'secret agent' for the CTS". But the delegate also tested the plausibility of the appellant's claims to have become or remained an informant. The delegate was not satisfied that the risk in which the appellant claimed to have put himself and his family was plausible, in that the delegate did not accept that a reasonable person would continue to be an informant for altruistic reasons after being personally attacked and having his home burnt out. 72 In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant's case and to provide the appellant with an opportunity to respond. 73 We would not however approach the resolution of the appeal by considering whether or not the delegate's decision indicated that all aspects of the appellant's credit were at issue in the Authority's review. That is to view the procedure through a natural justice lens. 74 We do not accept the submission put on behalf of the appellant that the fact that the Authority in the present case accepted as being before it the submissions made by the appellant, and accepted the new information involved in those submissions, implies that the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it formed specific reservations about the appellant's case, and to provide the appellant with an opportunity to respond. 75 There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant. 76 It was open to the Authority to disagree with the delegate's evaluation of the material without providing to the appellant an opportunity to respond. 77 If we are wrong in this conclusion, for completeness we would indicate that whether or not the appellant was a secret informant to the CTS was not a new issue in the relevant sense even though the reasons given by the Authority for rejecting the claim differed from those of the delegate. We refer to the submissions by the appellant's lawyers which we have noted at [22] above. 78 It follows from what we have said that, leaving aside for the moment Ground 5, the appeal fails. We regard the central issue as covered by Ground 2. As we have held, the primary judge did not err in finding that the Authority conducted a review as required by s 473CC, it not being necessary in the conduct of the Authority's review in this case to give the appellant notice of new issues and afford him a reasonable opportunity to respond. Ground 2 therefore fails. Ground 3, concerning legal unreasonableness, fails as under the statutory scheme in the circumstances of this case the Authority was not obliged to inform the appellant of the issues that it considered to arise on the review, insofar as those issues were not found to be dispositive by the delegate. Ground 4 fails as, in our opinion, s 473DA had the effect of excluding the requirement that the Authority comply with the requirements of procedural fairness in deciding whether to disclose the issues that arose on the Authority's review and to invite a response. Although, as we have said at [73] above and consistently with Ground 1, we do not approach the resolution of the appeal by considering whether or not the delegate's decision indicated that all aspects of the appellant's credit were at issue in the Authority's review, Ground 1 does not survive our other conclusions, particularly in relation to Ground 2.
Ground 5 79 The second and independent part of the appellant's appeal was Ground 5. 80 By this ground the appellant contends that the primary judge erred in holding that [21] of the Practice Direction was a valid exercise of the power to make directions pursuant to s 473FB of the Migration Act. The appellant contends that the primary judge erred in holding that [21] of the Practice Direction did not impose a limit on the length of submissions that was inconsistent with s 473DC and s 473DD and erred in holding that [21] was not an unreasonable exercise of the power conferred by s 473FB. 81 We have set out s 473FB at [12] above. 82 The relevant paragraph of the Practice Direction was as follows: 21. Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submission should be no longer than 5 pages and should be provided to us within 21 days of your case being referred to us by the Department. We may return longer submissions. If we return your submission we will give you a short deadline by which to provide a revised submission that complies with this direction. If you do not comply with that deadline we will make our decision without the benefit of your submissions. 83 The primary judge, at [82], rejected the submission that the Practice Direction was in the nature of delegated legislation. The appellant now accepts this. 84 The primary judge then referred, at [83], to an affidavit read in the proceedings before him. That affidavit stated that the deponent, who is the solicitor for the present appellant, normally provided far more extensive submissions on review cases to the Administrative Appeals Tribunal, which could be from around 20 pages or more. The submissions set out the relevant legal criteria as well as extracted the relevant updated country information. The solicitor restricted his submissions in the present case to what he believed was the barest minimum possible. This meant that detail and more information were not provided. It was not reasonably possible, the solicitor said in his affidavit, to provide further details and make submissions why the requirements of s 473DD were met within the five page limit, given that he had already reached that limit. (The reference to s 473DD is to the provision concerning the circumstances in which the Authority may consider new information.) 85 The primary judge accepted, at [88], the Minister's submission that the Practice Direction does not limit the amount of information or documents that might be provided as new information. 86 The primary judge said, at [90], the Practice Direction did not state that the Authority would not consider a submission in excess of five pages. On its terms, the Practice Direction, in referring to the possibility that longer submissions may be returned, clearly identified that it was possible to seek to provide submissions in excess of five pages but no such step was taken in the present case. 87 The primary judge said, at [91], that notwithstanding the evidence of the solicitor, the Court did not accept that if there had been material further information in the form of submissions that the solicitor had been desirous of adducing, that he could not have sought leave to do so or exceeded the page limit. 88 The primary judge said, at [92], that it was a forensic decision by the solicitor to comply with the Practice Direction rather than to put in submissions in excess of those identified in the Practice Direction. In any event, the limit identified of five pages was not accompanied by a statement that the Authority would not consider longer submissions. 89 The primary judge, at [93], rejected the submission that the Practice Direction was ultra vires or that it was inconsistent with the provisions of the Migration Act and Migration Regulations. The Practice Direction identified, the primary judge said, proposed efficient processing practices and [21] of the Practice Direction did not give rise to the Practice Direction falling outside the scope of power under s 473FB. 90 The primary judge also rejected, at [97], the submission that the Practice Direction was invalid due to unreasonableness. 91 In this Court both parties were content to rely on their written submissions in respect of this Ground. 92 As we have said, the appellant accepted that the Practice Direction was of an administrative character. He submitted that [21] of the Practice Direction impacted on the power of the Authority to get documents pursuant to s 473DC(1), a document being something other than "new information". The appellant submitted that [21] directly inhibited the ability of a referred applicant to address the issues in his or her case and thus acted as an inhibitor to the Authority making the best or preferable decision. This was especially so because that limit was without regard to the nature or complexity of the factual scenarios, without any indication of whether and in what circumstances the limit could be extended and in the absence of a right to a hearing. Seen in light of the duty of the Authority to "review" and the power of the Authority to obtain "documents" and its effect in inhibiting the referred applicant from arguing his or her case, the five page limit had no evident or intelligible justification. That being so, the five page limit was arbitrary, and being arbitrary was unjust and therefore a legally unreasonable exercise of power. 93 The Minister submitted that the Practice Direction did not prevent a referred applicant from providing a submission, or, in the event that new information was given to the Authority, an explanation as to why that information met the requirements of either s 473DD(b)(i) or (ii), that exceeded five pages in length. The Practice Direction merely stated that each "should be no longer than" five pages. The Practice Direction did not place a limit on the length of new information given to the Authority. Nor did it prevent the Authority from considering submissions that exceeded the page limit. 94 Secondly, the Minister submitted, the impugned parts of the Practice Direction could not be said to be inconsistent with the Act. It did not fetter the Authority's powers in s 473DC to get or accept new information. There was, therefore, no conflict between the impugned parts of the Practice Direction and the Migration Act. 95 Thirdly, the Minister submitted, the President's power under s 473FB was not exercised unreasonably. Given the Authority's objective of providing a mechanism of limited review, the statement in [21] of the Practice Direction was not arbitrary but intended to encourage referred applicants to keep the material that they provide to the Authority concise. The impugned provisions did not have the effect of inhibiting a referred applicant from arguing his or her case. 96 In our opinion, the first step is to consider the terms of the Practice Direction. 97 The meaning of the Practice Direction is to be considered in light of its [3] which states: This direction sets out the requirements to be followed by applicants (you) and their representatives and authorised recipients when dealing with the IAA (us). (Original emphasis.) 98 Next, the terms of the Practice Direction deal differently with submissions and new information. A written submission is stated, at [20], to be directed to "why you disagree with the decision of the Department" and "any claim or matter that you presented to the Department that was overlooked." Later paragraphs, [23]-[26] in particular, are directed to the question of new information. Those paragraphs state that if an applicant wants to give the Authority new information, the applicant must also provide an explanation which should be no longer than five pages and which must accompany any new information the applicant gives to the Authority. Then the Practice Direction states: 26. If you provide or refer to new information such as country information reports or media articles, you must provide a copy of that information or extract part(s) of the information on which you rely. You must identify the source of the information. Lists of publicly available documents or hyperlinks to publicly available documents are not acceptable. 99 In our opinion, therefore, the affidavit by the appellant's solicitor to some extent proceeded on a misconception, that misconception being that all new information and the s 473DD explanation as to the new information were required to be part of the five page submission referred to in [21] of the Practice Direction. 100 We note the [21] submission may contain information which was not before the Minister when the Minister made the decision and, if it does, it must pass the filter of s 473DD. But, as we have said, [21] of the Practice Direction is not directed to new information. 101 We would not approach [21] of the Practice Direction in the way the primary judge did at [92], to the effect that the present appellant, by his solicitor, made a forensic decision to comply with the Practice Direction "rather than to put in submissions in excess of those identified in the direction." It is correct to observe that [21] did not say that the Authority would not consider submissions longer than five pages but certainly the paragraph indicated that the Authority may send them back, implicitly, unread. 102 No doubt in a particular case an applicant may request the Authority that he or she may provide a written submission which is longer than five pages, but that did not occur in the present case. 103 We do not accept the appellant's submission that [21] of the Practice Direction impacts on the power of the Authority to "get any documents". In our opinion the submission dealt with by [21] of the Practice Direction is not directed to "new information". 104 Neither, in light of what we have said above, do we accept that [21] directly inhibits the ability of an applicant to address the issues in his or her case. Because the submission is intended to be directed to why the applicant disagrees with the decision of the Department or any claim or matter the applicant presented to the Department that was overlooked it cannot be said generally, or in this particular case, that that inhibition occurred or that the Authority was thereby inhibited from conducting its review under s 473CC. 105 Further, given the different forms of review conducted by the Administrative Appeals Tribunal on the one hand and the Authority on the other, contrary to the affidavit of the appellant's solicitor, what may happen in the Tribunal should not be taken as the starting point for the validity of [21] of the Practice Direction. For example, in contrast to the Tribunal, subject to Pt 7AA and speaking generally, the Authority is to review a fast track reviewable decision without accepting or requesting new information and without interviewing the referred applicant: see s 473DB. 106 In our opinion the evident or intelligible justification for the submission being no longer than five pages is to encourage, legitimately, submissions that are concise. 107 We conclude that the impugned paragraph, [21], of the Practice Direction is not inconsistent with s 473DC or s 473DD of the Migration Act or an unreasonable exercise of the power conferred by s 473FB. We reject Ground 5 of the appellant's appeal.
Conclusion and orders 108 The appeal is dismissed. The appellant is to pay the costs of the first respondent, as agreed or taxed. I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Reeves, Robertson and Rangiah.
DGZ16
Minister for Immigration and Border Protection
The appeal is dismissed. The appellant pay the first respondent's costs, as agreed or taxed.