The Appeal
25 As to the First Limb of Contention, the onus is on the appellant to establish the factual foundation for the conclusion that the Authority failed to consider exercising the discretion under s 473DC of the Act: CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [38] per Thawley J; ASW17 v Minister for Home Affairs [2018] FCA 1815 at [43] per Collier J. The appellant, in his written submissions, contended that the Authority, at [5]-[6] of its reasons for decision (already reproduced above), merely stated that it had been asked to exercise its discretion to put certain information to the appellant and answered this request by stating that it was under no obligation to do so. It followed, it was said, that by treating the lack of an obligation to seek comment from the appellant as determinative, the Authority "disabled" itself from going on to consider whether to exercise its discretionary power in s 473DC. Before me, that submission was only faintly pressed.
26 I respectfully reject the submission that the Authority did not consider whether to exercise the power in s 473DC. Having regard to the Authority's express acknowledgment of the appellant's request in [5] and its response to this request in [6], in my view, the better inference to be drawn is that the Authority did consider exercising its discretionary power. To treat the words, "Nor is there … any general obligation to otherwise seek comment from an applicant if the view taken by the IAA differs from that of the delegate", as merely a recitation of the effect of s 473DC, without denoting an attendant consideration of that power, is, respectfully, untenable. When one reads [5]-[6], there is an indication that the Authority reviewer turned her mind to whether or not to exercise the power in s 473DC, prompted in part or in whole because of the appellant's request. Consequently, there is no error of law of the kind described in the First Limb of Contention.
27 As to the Second Limb of Contention, it was common ground that the discretionary power in s 473DC, if exercised, should be exercised within the bounds of reasonableness in the sense explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332: see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 92 ALJR 481 at [21] per Gageler, Keane and Nettle JJ, [86] per Gordon J, [97] per Edelman J.
28 Mr Jahnke submitted that in circumstances where the Authority was aware that:
(a) the delegate had made a finding in the appellant's favour that it was unsafe for him to return to his home area of Jaghori due to the road insecurity outside of Kabul (the "Positive Finding");
(b) the Practice Direction, coupled with the operation of s 473FB(5), "silenced" the appellant from providing further evidence or information in support of the Positive Finding (because the appellant did not disagree with that finding);
(c) the appellant had explicitly articulated his concern about the constraints imposed by [20] of the Practice Direction and requested an opportunity to comment should the Authority be minded to reverse or change a finding of the delegate; and
(d) the only manner in which the appellant could provide additional evidence to bolster the delegate's Positive Finding was through the Authority exercising its discretionary powers in s 473DC(1) and (3),
it was legally unreasonable for the Authority not to exercise the discretionary power in s 473DC to seek further information from the appellant prior to overturning the Positive Finding.
29 I interpolate here that when asked what further information the appellant could furnish in respect of the new country information, supposing the power in s 473DC were exercised, counsel for the appellant was not able to identify with precision what the appellant could have provided. Mr Jahnke contended that, hypothetically, the appellant could have sought and provided country information reports and news articles or, at the very least, "challenged or argued with the credibility of the country information" relied upon by the Authority. I shall return to this submission.
30 The appellant contended that the factual matrix of the present case was novel and, therefore, had not been squarely addressed by the authorities on legal unreasonableness. In the absence of authorities directly on point, the appellant relied on CRY16 and, to a lesser extent, DZU16. In both cases, the Full Court of this Court found that it can be legally unreasonable for the Authority to fail to seek information under s 473DC(3) from the applicant on new issues that had not been dealt with by the delegate and which were ultimately dispositive to the Authority's decision.
31 In CRY16, the Authority affirmed a delegate's decision to refuse to grant a visa but on a different basis. The Authority decided that the applicant in that case would not face a real risk of harm if returned to Beirut, as distinct from other areas of Lebanon. However, the question of internal relocation to Beirut was not explored, or the subject of findings, by the delegate. In those circumstances, the Full Court of this Court decided that the Authority had acted legally unreasonably in failing to consider whether the applicant should have been afforded an opportunity to address the issue of relocation to Beirut pursuant to s 473DC. The Court said at [81]-[82]:
We do not accept the Minister's submission that where there is a new situation in the referred applicant's country of nationality, or if new information were obtained that meant there was a complete change of circumstances in the referred applicant's country of nationality after the delegate's decision, there was no obligation on the Authority to consider whether to bring it to the referred applicant's attention. We understood this submission to mean that those circumstances could not give rise to legal unreasonableness.
Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority's statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority's failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of "practicable", in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.
(Emphasis added.)
32 The appellant conceded that the present case is not on all fours with CRY16. However, he submitted that CRY16 was analogous in the sense that the Authority in that case knew that the applicant was likely to have information about an issue that was dispositive to the review. Here, he submitted, the Authority was similarly in a position to anticipate that the appellant had something to say or would know something about an issue that was dispositive to the review: the safety of travelling/returning to his home area of Jaghori. As such, it was legally unreasonable of the Authority not to have given the appellant an effective opportunity to address the issue of relocation to Jaghori, especially since:
(a) he was "silenced" from making any submissions on any of the delegate's positive findings by reason of the Practice Direction;
(b) the security situation in Afghanistan was "extremely fluid" in the relevant period; and
(c) a significant amount of time had passed between the decision of the delegate and the Authority's review (approximately 40 weeks, which is well beyond the six-week estimate given in the Practice Direction).
33 Before me, counsel for the appellant elevated the contention to one of broader application. He contended that every case which involves the Authority overturning a positive finding made by the delegate, on an issue that is dipositive to the review, without first exercising its power in s 473DC to seek further information from the referred applicant would be visited by legal unreasonableness.
34 In contradistinction, Mr Macliver of Counsel, who appeared for the Minister, submitted that CRY16 and DZU16 are not applicable to the immediate facts because those cases involved the Authority addressing a new issue of relocation not dealt with by the delegate. By contrast, here, the relevant issue, namely whether, in assessing complementary protection under s 36(2)(aa), the appellant faced a real risk of significant harm while travelling between Kabul and the Jaghori district, was considered by both the delegate and the Authority.
35 The Minister submitted that the present appeal bears greater similarity to DGZ16. In that case, the Authority affirmed the decision of the delegate to refuse the grant of a visa, but on factual conclusions that differed from those of the delegate. The appellant in that case argued that it was legally unreasonable for the Authority to have failed to exercise its power in s 473DC to invite a response from him, either in writing or at an interview, to address the new findings. This contention was rejected by the Full Court of this Court. Reeves, Robertson and Rangiah JJ relevantly said at [70]-[72] and [74]-[76]:
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) 253 FCR 475, 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 [Counter Terrorism Service ("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.
…
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.
36 The appellant sought to distinguish DGZ16. He submitted that in that case the delegate made a "whole raft of negative findings" against the appellant. It was therefore open to the appellant in DGZ16 to challenge any of those negative findings because the relevant Practice Direction did not inhibit him from doing so. The appellant in that case was said to occupy a different position because he could disagree with the negative findings made by the delegate. In other words, he was not precluded by a Practice Direction from making submissions as the appellant was in this case.
37 The Minister did not engage with those distinctions drawn by the appellant. Rather, the Minister emphasised [76] of the Full Court's decision in DGZ16 in support of the proposition that, in certain factual circumstances, it is open to the Authority to disagree with the delegate's evaluation of the material without providing to the appellant an opportunity to respond. This, he submitted, had direct application here and the position was not altered because the appellant requested an opportunity to comment if the Authority was considering reversing or changing a finding of the delegate. The Minister contended that the issue of relocation to Jaghori was squarely considered by the delegate, and all the Authority did was re-evaluate that very issue based on new country information. The Authority did not transgress the bounds of reasonableness by not exercising the discretion conferred by s 473DC(3) in those circumstances.
38 To fortify that submission, the Minister relied on s 473DE of the Act, particularly s 473DE(3)(a). The Minister submitted that the effect of s 473DE(3)(a) is that the Authority has no obligation to provide new information it has obtained pursuant to s 473DC(1) to a referred applicant if it is not specifically about the referred applicant and is just about a class of persons of which the applicant is a member. This, it was said, is reinforced by s 473DA(1) of the Act which provides that Division 3, together with ss 473GA and 473GB of the Act, "is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the [Authority]". Accordingly, in the Minister's submission, the Authority was not required to provide the new country information in the 2017 DFAT and UNAMA reports to the appellant, notwithstanding that the new country information was "a part of the reason" for affirming the Authority's decision. In those circumstances, it could therefore not be said that the Authority acted legally unreasonably in not issuing an invitation to comment to the appellant.
39 In that respect, the Minister also relied upon the decision of Thawley J in CCQ17, even though that case concerned whether there was a failure to consider exercising the power in s 473DC. At [53]-[54], his Honour said:
… Part 7AA restricts the rules of natural justice. It specifically contemplates the use of country information as a reason for affirming a decision without affording an opportunity to the referred applicant to be heard - see: s 473DE, in particular s 473DE(1)(a)(ii) and s 473DE(3)(a). As noted at [47] above, that does not mean there is necessarily no role for s 473DC to play in a particular case. The statutory scheme expressly states that there is no duty to get new information: s 473DC(2).
… assuming there was failure to consider exercising the discretion under s 473DC, such a failure does not have the characteristics of being legally unreasonable. The appellant did not show that the way in which the 2017 DFAT Report (which itself was "new information") was used by the Authority gave rise to any new issue …
The Minister submitted that two observations made by his Honour were of particular significance to this case and consistent with the Minister's position: (i) the statutory regime contemplates the use of new country information as a reason for affirming a decision without inviting the referred applicant to comment; and (ii) legal unreasonableness does not arise in circumstances where the Authority's consideration of the new country information is not in relation to any new issue.
40 Having regard to the above, I respectfully reject the appellant's Second Limb of Contention that the Authority acted legally unreasonably in not exercising the discretion in s 473DC. In my view, the confluence of the appellant's request to be heard, the "silencing" effect of the Practice Direction, and the overturning of the delegate's positive finding did not give rise to an obligation on the part of the Authority to exercise its power. Moreover, the requirement for legal reasonableness is not a vehicle for effectively mandating the exercise of s 473DC in every case which involves the Authority overturning a positive finding made by a delegate on an issue that is dipositive to its review. To adopt such a broad proposition would defeat the statutory goal of efficiency inherent in the fast track review process in Pt 7AA.
41 Here, it cannot be said that the Authority's decision not to exercise the power was "arbitrary or capricious" or devoid of "an evident and intelligible justification": see Li at [28] per French CJ, [76] per Hayne, Kiefel and Bell JJ. In this case, the delegate relied on country information to make a finding about the risk of the appellant returning to his home area of Jaghori. The Authority, upon its review, considering an issue that was before the delegate, subsequently obtained updated country information and concluded that it was, at the relevant time, safe for the appellant to return to Jaghori: cf CRY16 and DZU16. This course of conduct is analogous to that described in the passages set out above in DGZ16: the Authority evaluated for itself an issue squarely before the delegate in light of new information. As explained by the Full Court, the concept of legal reasonableness does not oblige the Authority to exercise its power in s 473DC in those circumstances. It is open to the Authority to reassess an issue before the delegate and reach a different conclusion without first inviting the referred applicant to comment, including overturning a positive finding made by the delegate
42 That the Authority in this case independently obtained new country information - as opposed to obtaining new information from the appellant as in DGZ16 - to arrive at its decision does not gainsay the proposition above. In that respect, I find that the language of s 473DE informs the content of the requirements of legal reasonableness in the exercise of s 473DC. By its plain language, s 473DE(3) provides that the Authority may use new information that "is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member" without inviting comment from the referred applicant. In my view, it would ordinarily be at odds with the clear text of the statute to conclude that jurisdictional error lies in the Authority not exercising the power conferred by s 473DC when new country information is used in relation to an issue that was before the delegate. With respect, the circumstances, set out in [28] and [32] above, pressed by the appellant as being "novel" - particularly the "silencing" effect of the Practice Direction - do not justify such a departure from the statutory scheme as laid down by Parliament. Because Pt 7AA provides for a "mechanism of limited review" that is "efficient" and "quick" and because Div 3 of Pt 7AA "is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by [the Authority]", there will inevitably be instances where a referred applicant will feel deprived of an opportunity to be heard. That is just a concomitant of the limited form of review deliberately chosen by Parliament and, without more, does not sound in legal unreasonableness. Having said that, there may be extreme cases where the failure to put new country information to a referred applicant is legally unreasonable, notwithstanding s 473DE(3).
43 At any rate, as adverted to earlier, I am not satisfied that the appellant, had he been given the opportunity to comment on the 2017 DFAT and UNAMA reports, could have said anything of probative value or utility in assessing the risk of harm to him of returning to Jaghori. He has not been in Afghanistan since 2013. There was nothing in evidence before the primary judge of any particular report or document that could have been put to the Authority on the issue of the 2017 DFAT and UNAMA reports' accuracy. There was no suggestion that the new country information was inaccurate or unreliable. In these circumstances, I am not satisfied that the appellant could have said anything that might have had a material effect on the outcome below: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 at [29]-[31] per Kiefel CJ, Gageler and Keane JJ, [72] per Edelman J.
44 I am, therefore, not satisfied that there was an unreasonable failure by the Authority to exercise its discretion to seek further information from the appellant pursuant to s 473DC. The lack of further inquiry in this case did not result in the Authority's decision being vitiated by jurisdictional error: see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25].
45 For these reasons, the appeal should be dismissed with costs as agreed or assessed.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward.