The submissions of the parties
25 The Minister submitted that one relevant effect of s 473DA(1) was that the scope and the criteria for the exercise of the discretionary powers in ss 473DC(1) and (3) were not informed by any underlying obligation to put an affected person on notice of the critical or important issues upon which an administrative decision-maker's decision may turn, such as would arise under normal principles of procedural fairness. That would include the respondent's opportunity to be put on notice of the fact that the Authority may find that he could relocate to Beirut. This view was said to be supported by s 473DB(1) and s 473DC(2).
26 The Minister submitted that Pt 7AA did not contain an equivalent of the duty in s 425(1). The Minister referred to DBE16 v Minister for Immigration and Border Protection [2017] FCA 942, particularly at [59] and [65], where Barker J held:
I accept the Minister's submissions that no denial of natural justice arises from the mere fact that the Authority made different findings to those findings made by the delegate on the limited merits review system available under the fast track scheme. The Pt 7AA merits review system appears to operate on the understanding that the reviewer reconsiders all facts and so may make factual findings different to those of the original decision-maker. There is nothing in Pt 7AA of the Migration Act that suggests that the Authority is unable to make findings adverse to an applicant where the delegate made a finding favourable to the applicant in relation to the same issue. In this regard, there is force in the Minister's submission that the principles in SZBEL v Minister for Immigration (2006) 228 CLR 152; [2006] HCA 63 do not apply to reviews under Pt 7AA of the Migration Act. I note, without needing to interrogate the proposition further, that the Federal Circuit Court has accepted the proposition in such decisions as DZU16 v Minister for Immigration & Anor [2017] FCCA 851 at [101]; AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 at [11]-[12]).
…
Consequently, it would seem to follow that there was no obligation on the Authority to give any notice to the appellant that it may find that he had not been the victim of past extortion and to invite him to comment on this possibility, either in writing or at an interview. Of course, good and reliable decision-making might be enhanced if a decision-maker adopted this course and sought comment. Its ability to do so will, however, be governed by the constraints imposed by s 473DC and s 473DD. But on the facts of this case, there is no basis to conclude that the Authority failed to exercise the decision-making task entrusted to it by the Act, and thereby committed a jurisdictional error.
27 The Minister submitted that, in the light of s 473DA, the only relevant question was whether Pt 7AA required the Authority to give such notice to a referred applicant. The Authority's obligations and powers were those stated expressly in Pt 7AA. Insofar as the primary judge held otherwise at [16]-[17], [18] and [21], his Honour erred.
28 The power in s 473DC(3)(b) was purely discretionary and the Authority was not under a duty to consider the possible exercise of that power. This was consistent with the broader context in which the provision appeared, which included not only s 473DC(2) but also s 473CC(2) which conferred limited decision-making powers on the Authority. The Authority did not have the power to substitute its own decision for that of the Minister.
29 The Minister referred also to: s 473DA(1) which, he submitted, supplied the words of necessary intendment to exclude general law principles of procedural fairness; s 473DB(1) which meant there was no obligation on the Authority to invite a referred applicant to a hearing and no automatic right for him or her to have further information or submissions considered; s 473DE(1) which constituted a clear legislative intention not to provide a referred applicant the right to respond to country information that may be adverse; and s 473FA(1) which made no reference to procedural fairness.
30 The restrictive system of merits review was one in which the Authority may (and in many cases must) proceed to make a decision without any input from a referred applicant. Section 473DB(1) suggested that the Authority was empowered to seek information or comment from a referred applicant only to the extent permitted by express provision in Pt 7AA.
31 If there was no duty imposed on a decision-maker to consider the exercise of a discretionary power, the principles of legal unreasonableness could only have application in cases where the decision-maker had given consideration to exercising the power, and decided to exercise it in a manner adverse to an affected party. In the present case there was not a decision actively made by the Authority against the respondent, the affected party. There was no evidence to suggest that the Authority exercised, or even considered exercising, its power in s 473DC. Given the presence of s 473DC(2), the Authority's non-engagement with s 473DC(3) meant that it could not be said that it exercised that power in a legally unreasonable manner.
32 The primary judge in the present case was wrong to follow DZU16 and made an appellable error by holding that the Authority's failure to consider exercising its discretionary power in s 473DC(3) to invite the respondent to comment on the dispositive issues was legally unreasonable.
33 The Minister submitted that Pt 7AA did not have as one of its objectives the provision of procedural fairness beyond the extent to which its particular provisions provided it to a referred applicant. For that reason, it was erroneous to approach questions of reasonableness by way of expectations of such procedural fairness. So it would be a mistake to assume that one of the purposes of s 473DC, or the scheme more broadly, was to provide a fair hearing. On the face of the scheme its objectives were to provide efficient and quick review.
34 Decisions which were referred to the Authority under s 473CA were necessarily cases in which the visa had been refused by a delegate at the end of a process that included a codified regime of procedural fairness. The reviewed applicant would not be any worse off if the review went against him or her, including if it went against him or her because of findings that were different to the findings that the delegate made.
35 The outcome in this case was not outside the scope of decisional freedom. The respondent, the Minister submitted, had no inkling, and no way of having an inkling, that the Authority was going to accept the case he had put to the delegate, but then decide against him on a different basis. In an ordinary sense one could describe it as an unfair outcome, but it was a legally unreasonable outcome only if one assumed that the achievement of a procedure whereby the referred applicant had the opportunity to address the dispositive issue constituted an objective or a value that underpinned the statutory scheme, which it did not.
36 In terms of procedure, the Minister submitted that in the statutory scheme, including the scope of the review, the destination the review can lead to and the statutory provisions, especially s 473DA, there was not an implied obligation on the Authority to tell the person what the critical issues were. It should not be assumed that the purpose of s 473DC was to do with procedural fairness.
37 The respondent submitted that the primary judge had concluded that jurisdictional error was demonstrated by the Authority's failure to turn its mind to whether the respondent should be given an effective opportunity to address the potentially dispositive issue that had not previously been raised. The primary judge found that the Authority had not considered whether the respondent had any opportunity to be heard on the key issue before the delegate and as a consequence had not considered either of two options that were open to it in order to provide such an opportunity. The first option was to consider the exercise of its statutory discretions under ss 473DC and 473DD to seek out further information directed at the dispositive issue. The second option was to consider setting aside the decision of the Authority and remitting the matter to the delegate to determine afresh. The question of procedural fairness assumed contextual, rather than direct, significance in the primary judge's reasons for judgment.
38 The respondent submitted that the effect of s 473DA(1) was to identify the powers that were available to the Authority to achieve the objective of observing and discharging, in respect of each referred applicant, the requirements of the natural justice hearing rule. It did not entirely displace or exclude procedural fairness requirements but identified and codified the statutory means by which such requirements may be given effect. It was therefore not correct that the scope and criteria for the exercise of the discretionary powers in ss 473DC(1) and (3), for example, were not informed by obligations fundamental to the natural justice hearing rule, including the obligation to put an affected person on notice of the critical or important issues upon which an administrative decision-maker's decision may turn. The clear words or necessary implication to exclude the requirements of natural justice were absent.
39 The respondent submitted that what was notable about s 473CD was that it provided the means by which the Authority could obtain information or documents that were not before the primary decision-maker and which the Authority considered may be relevant. The range of circumstances in which the power may be exercised included a means of obtaining information directed to issues which had arisen or been identified for the first time on the fast track review. This included the present case where the Authority departed from findings made by the delegate and introduced the new paradigm of internal relocation. Other circumstances would be where the Authority became aware of a significant change of conditions in the referred applicant's country of origin since the date of the primary decision under s 65. The Authority was making a fresh decision and was not restricted to the correction of error in relation to the issues considered by the delegate to be determinative: BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169.
40 The Authority had power under s 473DC to get any documents or information that it considered may be relevant, including by inviting the referred applicant or another person to give such information in writing or at an interview. Even accepting that the power was qualified by the requirements of s 473DD, the power was nevertheless available in circumstances where a new issue arose on which the referred applicant had not yet had any opportunity to be heard. It was no answer to say that the Authority did not have a duty to get, request or accept any new information (s 473DC(2)). A failure to consider whether to exercise the powers may nevertheless be legally unreasonable and give rise to jurisdictional error. The respondent referred to other provisions in the Migration Act which expressly provided that the Minister did not have a duty to consider whether to exercise the relevant power.
41 If the Authority was not prepared to exercise its power to get new information from the respondent on the issue of internal relocation to Beirut, it should have considered how this affected the exercise of its dispositive powers under s 473CC. In circumstances where the Authority did not agree with the delegate's findings in relation to risk of serious or significant harm, the Authority could and should have considered whether it was appropriate to remit the decision for reconsideration, rather than proceed to affirm the delegate's decision on a different basis.
42 The respondent submitted that no provision clearly displaced the legislature's intention that a discretionary power, statutorily conferred, will be exercised reasonably. In particular, s 473DC(2) did not have this effect. Legal reasonableness in a particular case may require the Authority to act or to refrain from acting, or to consider whether to act or refrain from acting, in a particular manner. Such a result was not inconsistent with or antithetical to the absence of a duty. The Authority had available to it a collection of powers, including the power under s 473DC(1), to get from the respondent new information and/or documents, the power under s 473DD to consider any new information (including new information obtained from the respondent), and the power under s 473CC(2) to remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as were permitted by regulation. The Authority did not exercise any of these powers, nor did it even turn its mind to their possible exercise.
43 Where the question of relocation arose for the first time before the Authority and was a matter that comprehended issues of reasonableness of relocation to a particular place in the respondent's particular circumstances, the Authority, by failing even to turn its mind to the question of whether it should exercise any one or more of the powers available to it under Pt 7AA to invite comment from the respondent, was itself acting unreasonably. This conclusion followed either from a lack of any evident and intelligible justification for the decision, or from the exposure of an underlying error in the nature of a misapprehension about or ignorance of the powers that were available to the Authority.
44 The respondent submitted the real issue was the question whether, if a new issue arose for the first time before the Authority, the Authority should consider whether to exercise its available powers to invite the referred applicant to give new information in relation to that issue or, more generally outside the framework of information, to invite a response or provision of submissions. One available source of power was s 473DC(1) or (3).
45 A second aspect to that was whether, in undertaking that consideration, the Authority should consider whether or not the referred applicant had had a reasonable opportunity to be heard on that issue before the delegate. The starting point was that Pt 7AA provided for a referred applicant to be heard on the issues and that that generally took place before the delegate.
46 The regime was not set up to deny an opportunity to be heard to a referred applicant. It was not necessary to say that there was an opportunity to be heard that governed the Authority's functions. But at some point the Authority must turn its mind to whether the referred applicant had had an opportunity to be heard and should be given an opportunity to address the issue.
47 Section 473DC(2) said there was no duty but, in contrast to the language in Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319, it did not remove the obligation to consider. The language of this provision simply said no "duty to get". Nowhere was there anything addressed to the question of consideration. What the primary judge relied upon as informing that obligation was the underlying question of whether there had been an opportunity to be heard on the issue, and that was different from saying that the Authority must give an opportunity to be heard.
48 Without conceding that there was no room for more general natural justice obligations within Div 3, the primary judge was not postulating some obligation to give a hearing but that, in deciding whether or not to exercise these powers, the Authority should turn its mind to whether or not the referred applicant had had an opportunity to be heard on that issue already. The powers were put there for the very purpose of ensuring that, if it was necessary to give a hearing on a new issue, that was how it was to be done.
49 As held by the primary judge, the obligation was not to get the information or to remit, but to consider whether to do either of those things.
50 In the present case, as held by the primary judge at [21], the Authority did not even consider whether the respondent had had any opportunity to be heard on the relocation issue before the delegate. So it would have been necessary then to consider in that light whether to get information under s 473DC or to remit, with a permissible direction, under s 473CC. That was not the same as saying that the respondent must be given a reasonable opportunity to be heard on the dispositive issue.
51 The matter rested on legal unreasonableness in failing to consider and, perhaps, failing to exercise available powers having regard to the scope and purpose of the statutory scheme. This was clear from the finding the primary judge made at [16], where he concluded that there was legal unreasonableness here.
52 The respondent accepted that the scheme under Pt 7AA was set up to provide a more limited form of merits review of certain protection visa decisions, but strongly submitted that it was not designed to be intrinsically unfair.
53 The whole premise of that regime was that referred applicants had had an opportunity to make claims and provide information - an opportunity to be heard - at the primary level before the delegate, and the mischief was that applicants should put all claims forward at the earliest opportunity and the review by the Authority was designed to operate as a quick and efficient second stage review and reconsideration. But it would completely undermine that premise and that purpose if, where a new issue arose before the Authority on which there had been no reasonable opportunity to be heard and in respect of which the Authority was given powers to deal with if exceptional circumstances were established, the Authority were to be under no obligation even to consider whether to do so, having regard to the underlying purpose of the regime which was to give an opportunity to be heard on all relevant issues.
54 The explanatory memorandum accompanying the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) included the following:
A key component of the fast track assessment process is that fast track applicants will not be permitted to seek review from the RRT of their protection visa decisions. The Bill will instead, require the Minister to refer, as soon as reasonably practicable, certain decisions made in respect of fast track review applicants to the Immigration Assessment Authority (the IAA). The IAA will conduct a limited review of these decisions.
…
As a limited review body, other than in exceptional circumstances, the IAA is prohibited from considering any new information for the purposes of making a decision, irrespective of whether the IAA obtained it through its discretionary powers or an applicant provided it of their own volition. New information will only be considered if the IAA is satisfied that there are exceptional circumstances to justify the consideration of that new information. For example, exceptional circumstances may be found where there is evidence of a significant change of conditions in the applicant's country of origin that means the applicant may now engage Australia's protection obligations. Where an applicant provides or seeks to provide the IAA with new information of their own volition, they would also have to satisfy the IAA that the new information could not have been provided to the Minister before the primary decision was made. The limited review mechanism supports the measures in the Migration Amendment (Protection and Other Measures) Bill 2014 which clarify the responsibility of asylum seekers to specify the particulars of their claim, provide sufficient evidence to establish their claim and encourage complete information to be provided upfront. The measures will prevent those asylum seekers who attempt to exploit the merits review process by presenting new claims or evidence to bolster their original unsuccessful claims only after they learn why they were not found to engage Australia's protection obligations by the Department of Immigration and Border Protection.
…
The power to remit a fast track decision with directions or recommendations will permit the IAA to review the substantive matters which must be satisfied before the visa application can be approved and, if these are decided in favour of the applicant, to then remit the case back to the Department to consider the more procedural criteria, which would not be appropriate for the IAA to deal with.
55 The critical part of this part of the explanatory memorandum, the respondent submitted, was that in dealing with whether and when new information should be obtained, it was noted that the limited review mechanism supported the measures in the Migration Amendment (Protection and Other Measures) Bill which clarified the responsibility of asylum seekers to specify the particulars of their claim, provide sufficient evidence to establish their claim and encourage complete information to be provided up front. That Bill, which became a 2015 Act, inserted ss 5AAA and 423A, and each of those essentially did two things: one, it declared the responsibility to provide as many or all particulars of claims at the first opportunity and, two, the latter section provided that the tribunal should draw an inference adverse to credibility if that obligation was not adhered to. So if an applicant at review sought to rely on fresh claims or evidence then, unless there was a reasonable explanation, the tribunal was directed to draw an inference adverse to credibility.
56 That mischief had nothing to do with the present appeal, and, the respondent submitted, the scheme of the legislation provided mechanisms in Pt 7AA to deal with situations which fell outside that mischief. There was nothing in Pt 7AA which said anything to change the fundamental principle that the decision as to protection obligations was made as at the date of the decision on the circumstances then prevailing. The difficulty for the Minister's submissions was that in a situation explicitly addressed on multiple occasions in the explanatory memorandum, that the Authority could get new country information on a recent change of circumstances in the country of origin either of its own initiative or sent by the Secretary, the Authority could determine the review on that basis adversely to a referred applicant without any obligation even to consider whether the applicant should be heard on that issue.
57 The respondent referred to the judgment of Gageler J in Li at [99] and [103]:
The legislative declaration that Div 5 of Pt 5 "is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with" (s 357A(1)) gives added significance to the implied requirement for the MRT to act reasonably in the performance of its procedural duties and in the exercise or non-exercise of its procedural powers. The significance is that the implied statutory requirement for the performance of those duties and the exercise of those powers always to be reasonable results in the division providing a measure of procedural fairness sufficient to meet the statutory description of it as a statement of the requirements of the natural justice hearing rule.
…
The MRT fails to comply with a requirement essential to the valid performance of its duty to review a particular decision if it fails to consider the exercise of its power to adjourn that review in circumstances where no reasonable tribunal could fail to do so. The MRT fails to comply with requirements essential to the valid performance of that duty and to the valid exercise of that power where, having considered the exercise of that power, the MRT fails to exercise that power so as to adjourn the review in circumstances where no reasonable tribunal could fail to adjourn the review. If an unreasonable failure to adjourn is material to the outcome, such decision as the MRT goes on in fact to make on the review is invalid.
58 The respondent submitted that it was very relevant, in considering the scope and availability of the powers conferred in Div 3 of Pt 7AA, which included the power to get new information, to recognise they were part of a statutory code of procedure. They were not some draconian exclusion of fairness. They were a way of achieving fairness.
59 The respondent submitted that judicial review was sought in relation to the ultimate decision on the review and the question was whether some exercise or non-exercise of a procedural power had led to unreasonableness in the ultimate decision.
60 The respondent submitted that although there was no duty to get information, the non-consideration or the non-exercise could still lead to unreasonableness in the ultimate decision in a manner that would mean that the body had not performed its statutory task. That was to be assessed by having regard to the statutory purpose and objects which, in the case of the Migration Review Tribunal, included provisions like s 420 or s 353 in relation to the substantial justice and the merits of the case. But here one would look at the purpose, which was to ensure that at some point in this process a referred applicant was given an opportunity to be heard, and that a referred applicant who sat on their rights or sat on information or claims will potentially be shut out at the review stage. But the provisions were not intended to deny a fair hearing to a referred applicant on genuinely new issues that arose after the delegate had made his or her decision.
61 In reply, the Minister submitted that in a case where the dispositive issue had not been the subject of a hearing before the delegate, that meant that an assumption that may have underlain the drafting of Pt 7AA may not be a good assumption, but it did not follow that therefore words were to be read into the language that was not in the sections.
62 If there was a new situation in the referred applicant's country of nationality or if new information was obtained that meant there was a complete change of circumstances in the referred applicant's country of nationality after the delegate's decision, the Minister submitted that there was no obligation on the Authority to bring that to the referred applicant's attention or to consider whether to bring it to their attention. The paragraphs of the explanatory memorandum referred to circumstances which may justify the consideration of new information. They did not go the next step and speak of circumstances which may or would justify reverting to a referred applicant. The Minister submitted that it was conceivable that the Authority might decline to acquire new information, and might make a decision ignoring changes in the referred applicant's country of origin which decision would, nevertheless, not be invalid because it would be one based on the material before the Authority.
63 In written submissions filed, by leave, after the hearing, the respondent made submissions to the effect that s 473DC(1) should be read down so that it only applied to documents or information of an evidentiary character, and did not apply generally to written submissions or comments given to the Authority by a referred applicant. It would follow, it was submitted, that the Authority had power to seek or to receive written submissions or comments from a referred applicant apart from and outside its specific powers to get new information under s 473DC and to consider new information under s 473DD. There was no express or implied statutory prohibition in Pt 7AA that would prevent the Authority from seeking or receiving such submissions or comments. Insofar as submissions or comments from a referred applicant contained new information in an evidentiary sense, the Authority would need to apply the requirements of s 473DD before considering that information. The Authority would be otherwise free to have regard to the submissions or comments outside the requirements of ss 473DC and 473DD.
64 In his written response, also by leave, the Minister made submissions on the issue whether the resolution of the case might lie outside s 473DC by virtue of an implicit capacity in the Authority to invite not information but submissions. In broad terms, the Minister's submission was that the Authority had only the powers granted to it by statute and there was no room for the implied powers for which the respondent contended.
65 In light of our conclusions below, it is not necessary to consider this issue.