DOX17 v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant do pay the first respondent's costs of the appeal fixed at $7,241. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 In April 2013, the appellant, a citizen of Afghanistan, arrived in Australia by boat without papers authorising his entry. He applied for a protection visa. The application was refused by a delegate of the Minister. In accordance with the requirements of s 473CA of the Migration Act 1958 (Cth), the refusal was referred to the Immigration Assessment Authority for review. 2 In conducting its review, the Authority may 'get … new information' being documents or information that was not before the Minister when the original decision was made and that the Authority considers may be relevant. However, the Authority must not consider new information unless the conditions stated in s 473DD are met. Section 473DD says: 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. 3 The Authority was asked by the appellant to consider new information. It included a letter from a person (now living in Australia) who said he had been the Commander of a named military base in Afghanistan. The letter also said that the author personally knew the appellant who worked as a guard at the base. A submission to the Authority provided contact details for the author of the letter and said that the author was 'easily contactable' by the Minister's Department. The submission also said that the appellant had only been able to locate the author after the decision to refuse his visa application and that the author of the letter had been granted protection in Australia on the basis of his own employment at the base. 4 The letter was provided by the appellant to the Authority in a context where the decision by the delegate of the Minister to refuse his visa application had been based on a finding that his claim that he had an association with the military base was made in an attempt to enhance his claims for protection in Australia and was not accepted as being true. 5 The Authority concluded that it was not satisfied that there were exceptional circumstances to justify considering the letter as new information. It reasoned as follows concerning the letter and whether it should make inquiries of the author of the letter (at para 7): Also annexed to the submission is a letter dated 5 February 2017 purportedly from the applicant's then Commander at [the base] attesting that the applicant worked at the base under his command and that [a nearby village] was attacked by the Taliban while he was working there. Documentary evidence supporting this person's identity has also been provided in the form of an Australian driver's licence. Having regard to the contents of the letter, while it attests that the applicant lived at the base while he was working there as a security guard and that [the nearby village] was attacked during this time it does not provide dates or any further specific detail. The author notes he was the Commander at the camp however no supporting military credentials have been provided to support this. The applicant claims he was previously unaware of this person's presence in Australia and was only able to locate him following the delegate's decision. However no further details have been provided as to how the applicant came to know about his former Commander living in Australia. I also have concerns about the applicant's former Commander referring to him with [a particular] surname when he did not apparently go by that name for purposes of his employment. The submission notes the author was granted protection in Australia on the basis of his own employment at the base and has provided the author's details, inviting the [Authority] to verify the information. The [Authority] does not have a duty to get, request or accept, any new information even when requested to do so by a referred applicant. I am under no duty to contact third parties to obtain evidence or to seek verification. I am satisfied the issues at hand are those which the delegate brought to the applicant's attention, including about the integrity of his claims relating to his employment and related documentation. The applicant is also capably represented, and submissions have been provided in relation to the determinative issues. I am satisfied that the applicant has had ample time and opportunity to provide further evidence of his employment and I am satisfied that it is not necessary to seek further information or interview the applicant in all the circumstances. I am not satisfied on the evidence that the letter contains credible personal information about the applicant. Nor am I satisfied that any exceptional circumstances exist that justify considering the new information. I have not had regard to this information. 6 The Authority proceeded to affirm the decision to refuse the application for a protection visa. 7 The appellant then sought to review the Authority's decision in the Federal Circuit Court on the basis of alleged jurisdictional error. The only ground raised in that court that is relevant for present purposes was a claim that the Authority erred by failing to make inquiries of the author of the letter. 8 As to that ground, the primary judge rejected a submission that the failure to get information from the author of the letter was legally unreasonable: at [15]-[16]. 9 The appellant now brings an appeal against the decision of the Federal Circuit Court. The sole ground of appeal is that the primary judge erred in failing to find that the Authority had engaged in an unreasonable non-exercise of the power contained in s 473DC(3). 10 Section 473DC provides: 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. 11 The appellant now submits that the Authority approached the matter on the basis that it had no duty to get new information and, in doing so, it failed to expressly consider whether to exercise its discretionary power under s 473DC to get new information. This is a reformulation of the way the matter was put to the primary judge where the claim was that there had been an unreasonable failure to exercise the power (as distinct from an unreasonable failure to consider its exercise). This is also the way the matter is expressed in the ground of appeal. Though pointing out that the submission as advanced raised a ground that had not been put to the primary judge, counsel for the Minister did not oppose the reformulation and dealt with the substance of the ground. 12 For the appellant, reliance was placed on the decision in Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526 at [85] where the Court (Robertson, Murphy and Kerr JJ) found that the Authority's decision in that case showed that it had given no consideration to the exercise of its discretion under s 473DC in circumstances where it should have done so. In an earlier decision in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475, the same Court had found that a failure to consider the exercise of the powers available to the Authority under Part 7AA to invite comment from the respondent, in the circumstances of that case, was unreasonable in a jurisdictional sense: at [43]. In CRY16, the issue of relocation within the receiving country arose for the first time before the Authority and it was that circumstance that made the failure to consider the exercise of the power unreasonable. Applying that approach in DZU16, the Court held in different circumstances that because the Authority had to carry out its statutory task of review in a reasonable way, the Authority had to consider acting under s 473DC: at [79], [81]; see also DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222 at [69]-[71] (Collier, Middleton and Rangiah JJ); and BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114; (2018) 261 FCR 35 at [29] (Flick, Markovic and Banks-Smith JJ). 13 These decisions reflect the position adopted by the parties in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [21] where Gageler, Keane and Nettle JJ noted that there was no dispute between the parties that the various powers conferred on the Authority were conferred on the implied condition that they are to be exercised within the bounds of reasonableness with the consequence that 'an unreasonable failure to exercise such a power can render invalid a purported performance by the Authority' of its duty to undertake a review. 14 Although one answer advanced by the Minister in the appeal was that there had been a consideration by the Authority whether to exercise the power under s 473DC, no claim was advanced that any such consideration was itself unreasonable. Nor was a claim advanced that the formation by the Authority of the states of satisfaction that had to be reached for the purposes of s 473DD was unreasonable. The sole ground raised was that there was an unreasonable failure to consider the exercise of the power conferred on the Authority by s 473DC. 15 I am not satisfied that the Authority failed to consider the exercise of its power to get new information. It first stated that it had no duty to contact third parties. However, it then went on to expressly advert to the possibility of seeking further information and provided reasons as to why that was not necessary. That view was formed in the context of considering whether to receive the letter as new information and plainly related to the submission that had been made that the Authority should contact the author of the letter. Much of the reasoning was founded on the insufficiency of the information that had been provided by the appellant to persuade the Authority to the required states of satisfaction for the purposes of s 473DD. It reflected the fact that it was for the appellant who sought to put forward the information to provide sufficient information to satisfy the Authority as to the matters stated in s 473DD(b) if the new information was to be considered by the Authority. 16 The Authority then considered whether to exercise its power to get new information in the following passage (being an extract from para 7 of its reasons as quoted above): I am satisfied the issues at hand are those which the delegate brought to the applicant's attention, including about the integrity of his claims relating to his employment and related documentation. The applicant is also capably represented, and submissions have been provided in relation to the determinative issues. I am satisfied that the applicant has had ample time and opportunity to provide further evidence of his employment and I am satisfied that it is not necessary to seek further information or interview the applicant in all the circumstances. 17 The 'issues at hand' concerned whether the appellant had worked at the base. The delegate's reasons stated that at his interview the delegate had put to the appellant that the delegate placed no significant weight on the documents he provided relating to his purported employment at the base. A similar statement was made by the delegate in respect of matters advanced on behalf of the appellant in a migration agent's submission. The registered migration agent had provided submissions to the Authority on 6 February and 15 June 2017. The submissions of 6 February 2017 made the statement that the information about the Commander could not have been provided earlier as the applicant was not aware of his location and it was very difficult for the applicant to find him. The conclusion reached by the Authority that the applicant was capably represented and had been given ample time and opportunity to provide further evidence of his employment is to be read in that context. It is also to be read in the context of the earlier observation that the letter from the Commander lacked dates or any further specific detail. 18 Section 473DC was the only source of power for the Authority to receive further information and the question whether there should be further inquiry was not a matter to be addressed under s 473DD. 19 In all the circumstances, the reasoning of the Authority was directed towards a consideration as to whether to exercise the power under s 473DC. An attempt was made to characterise the reasoning of the Authority as only considering making an inquiry of the appellant. However, in context, the reference in the critical passage to it not being necessary 'to seek further information or interview the applicant' is a reference to two separate matters. First, seeking information from the author of the letter (or some other third party). Second, interviewing the applicant. 20 It follows that the appeal ground has not been made out. 21 In the course of oral submissions it was contended that if there had not been a failure generally to consider the exercise of the power under s 473DC, then there had been a failure to consider an exercise of that power confined to the question whether the appellant had truly only just been able to make contact with the Commander. In support of that submission it was contended that the Authority could not reasonably proceed not to accept the material advanced by the appellant without making that inquiry. It was this aspect that allegedly made unreasonable the failure to make the particular inquiry in the exercise of the power under s 473DC. 22 For the Minister it was submitted that the question whether there had been a failure to consider the exercise of the power was to be adjudged by reference to the Authority's reasons (at para 7). It was said that consideration was given to the question in a general way. It was also submitted that the reasonableness of the Authority's approach was to be adjudged in a statutory context where it was a matter for the appellant to satisfy the Authority as to the matters stated in s 473DD(b). In that context, it was to be expected that the appellant would advance detailed material to support why the information had not been previously obtained. Indeed, even if the power under s 473DC was exercised, there would still be a need to address those matters before any new information that was obtained could be considered by the Authority. It was not for the Authority to interrogate the appellant as to those matters or take on that duty. In those circumstances, there was no unreasonableness in failing to separately consider making that inquiry. However, submissions to the effect that the decision was reasonable need not be addressed because the ground was confined to a claim that there was an unreasonable failure to consider exercising the power. 23 For reasons I have given, I accept the submission that the Authority considered whether to exercise the power under s 473DC in a context which showed that the consideration was addressed to whether any further information should be sought which included seeking information from the Commander. Therefore, there was no failure to consider the particular exercise of the power the subject of the alternative submission. 24 It was separately submitted for the Minister that the rejection of the letter as new information of itself meant that it could not have been legally unreasonable for the Authority not to have considered whether to exercise its power under s 473DC. I do not accept that submission. The reasoning by the Authority as to why it was not satisfied that there were exceptional circumstances that applied to the letter depended in part upon certain additional information not being provided with the letter. Reasoning of that kind invited a consideration as to whether to exercise the power to get that further information. If the additional information was obtained it may be that the Authority was then persuaded that all the information taken together was such that there were exceptional circumstances. The persuasiveness of the new information together with the additional information may take it out of the ordinary. In that regard, I note that the credibility of information may be considered as part of the process of evaluating whether there are exceptional circumstances: DLB17 v Minister for Home Affairs [2018] FCAFC 230 at [22]. 25 So, where the Authority reasons that new information must not be considered because of its state of satisfaction as to matters relevant to the conditions expressed in s 473DD and that state of satisfaction is reached due to the absence of some identified further critical information that might be easily ascertained by making an obvious inquiry, then that form of reasoning itself invites a consideration as to whether the Authority should exercise its power to make that inquiry and get the information. Indeed, it may be the reason why the failure to consider doing so or the failure to do so is unreasonable even though there is no duty to inquire. 26 However, that is not what occurred in the present case. Here, the Authority considered exercising the power and gave reasons as to why it did not do so. 27 For those reasons the appeal ground has not been made out. 28 Therefore, it is not necessary to consider the separate submission for the Minister that, in any event, the error if demonstrated was not an error of a kind that was material in the sense that the absence of the error could realistically have resulted in a different decision, relying on Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [44]-[45] (Bell, Gageler and Keane JJ). 29 It was accepted that if the appeal was unsuccessful then there should be an order for costs in favour of the Minister fixed in the amount provided for in the Federal Court Rules 2011 (Cth) for a short form bill, being $7,241. Therefore, the appeal should be dismissed with costs fixed in that amount. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.