What happened
The respondent, a citizen of Afghanistan born in 1991, is an ethnic Hazara and Shia Muslim from Qarabagh district in Ghazni Province. He arrived in Australia by sea after 13 August 2012 and became a fast-track applicant. He applied for a Safe Haven Enterprise (subclass 790) visa. At his protection visa interview on 8 July 2016 the delegate raised concerns about relocation to Kabul. Post-interview submissions from his migration agent addressed both the safety of his home district and the reasonableness of relocation to Kabul, citing specific attacks on Hazara Shias in Kabul between 2011 and 2016, including suicide bombings at a Shia mosque and cultural centre.
The delegate accepted that the respondent faced a real chance of serious harm in Qarabagh on account of his race and religion but concluded he could safely and reasonably relocate to Kabul. The decision was referred to the Immigration Assessment Authority (the Authority) under s 473CA on 15 August 2016. Before making its decision the Authority obtained new country information concerning the security situation in Kabul and Balkh Province and the viability of relocation to Mazar-e-Sharif. It decided that exceptional circumstances existed under s 473DD to consider that information.
On 27 October 2016 the Authority sent the respondent a letter headed "Invitation to comment on new information". The letter set out recent attacks on Hazara Shias, assessments by the Afghanistan Analysts Network and IHS Jane's that Islamic State Khorasan Province remained a limited threat, and information that Mazar-e-Sharif was one of the safest cities in Afghanistan with a commercial centre, universities and a Hazara population. The letter stated that comments had to be received by 1 November 2016 and warned that the Authority might decide without further input if none were received. The respondent, who was then in Villawood Immigration Detention Centre, received the letter only on the afternoon of 31 October 2016. He was illiterate in English, had limited English, no lawyer, and no assistance from detention centre staff. He telephoned the Authority twice on 1 November 2016 seeking help and an extension. On 1 November he emailed a request for six weeks to prepare a response.
The Authority replied on 2 November 2016 that the Migration Act imposed strict deadlines and it could not extend time, but that any response received before a decision (which would not be made before 3 November 2016) might be considered. The respondent did not provide further comments. On 15 November 2016 the Authority affirmed the delegate's decision. It found the respondent did not face a real chance of serious harm in Mazar-e-Sharif for any Convention reason or a real risk of significant harm, including from generalised violence which it described as "remote". It accepted relocation would be challenging but, weighing his work experience in Iran, languages, lack of serious health vulnerabilities and the economic and educational strengths of Mazar-e-Sharif, concluded it would be reasonable for him to relocate there.
The respondent sought judicial review in the Federal Circuit Court. That Court held that the Authority had acted unreasonably by proceeding under the mistaken belief that s 473DE compelled the invitation, specifying the wrong response period, failing to consider exercising the discretion under s 473DC(3), and not correcting its error when told of the late receipt. The primary judge also held the Authority had failed to consider whether generalised violence in Mazar-e-Sharif rendered relocation unreasonable. The Minister appealed to the Full Court.
The Full Court (Robertson, Murphy and Kerr JJ) dismissed the appeal. It held that the Authority's mistake about s 473DE did not immunise its process from review for legal unreasonableness. Because the delegate had never raised Mazar-e-Sharif, the new information went to the dispositive issue, the Authority knew the respondent's vulnerabilities, and it had not turned its mind to s 473DC(3), the failure to consider affording an effective opportunity to respond was legally unreasonable and constituted jurisdictional error. The Court rejected the respondent's contention that common-law procedural fairness operated independently. However it upheld the Minister's ground concerning relocation, finding that when the Authority's reasons were read as a whole it had considered both specific and generalised risks and the practical realities for this applicant. Because the unreasonableness ground succeeded the decision was quashed and the review remitted.
Why the court decided this way
The Full Court's reasoning turned on the interaction between the exhaustive procedural code in Pt 7AA and the implied statutory obligation that all powers be exercised reasonably. At [79]-[81] the Court held that the Authority's mistaken belief that it was obliged to issue the 27 October 2016 letter under s 473DE had an operative effect. Because it thought it was acting under a duty, it did not consider the discretionary power in s 473DC(3). That failure was assessed against the principles in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, which the Court followed at [80]. In CRY16 the Authority had relied on new information about an internal relocation alternative not explored by the delegate. The same situation arose here: the delegate had asked only about Kabul; the Authority introduced Mazar-e-Sharif.
Legal unreasonableness was assessed by reference to the statutory context. Section 473DA(1) makes Div 3 an exhaustive statement of the natural justice hearing rule, and s 473DB requires review on the papers without interviewing the applicant. Yet s 473FA(1) requires the Authority to pursue an efficient, quick, free-of-bias review consistent with Div 3. The discretion in s 473DC(3) exists to be exercised in aid of the correct or preferable decision. Where the Authority knows the applicant is in detention, illiterate, without representation, and has received an invitation only one working day before the erroneously stated deadline, the failure to consider an interview or a longer written period lacks an evident and intelligible justification (Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [99], [102] cited at [64]).
The Court emphasised at [81] and [87] that reasonableness of relocation under s 36(2B)(a) and s 5J(1)(c) depends on the particular circumstances of the applicant and the impact of relocation (SZATV v Minister for Immigration & Citizenship [2007] HCA 40; 233 CLR 18 at [24]). By disabling itself from receiving the respondent's response on that very point the Authority disabled itself from performing its statutory task under s 473CC. The errors as to time (three times stating the wrong deadline: see [73]-[75]) compounded the unreasonableness. Even on the alternative analysis at [91]-[94] that the letter was issued under a bare non-statutory capacity, the time allowed was not reasonable in the circumstances known to the Authority.
On the relocation ground the Court read the Authority's reasons holistically. It had dealt with risk in Mazar-e-Sharif at [27]-[49], found the chance of harm from generalised violence "remote", and then at [50]-[61] weighed the respondent's personal circumstances against the city's opportunities. The primary judge's conclusion that the Authority considered risk only on access roads was not supported. Thus no separate jurisdictional error arose on that issue, but the unreasonableness error required remittal.
Before and after state of the law
Before this decision the law on fast-track reviews was still developing. CRY16 had established that, despite the exhaustive natural justice code, legal unreasonableness could require the Authority to consider exercising the s 473DC(3) discretion in particular circumstances, especially where new country information on an unraised relocation alternative became dispositive. Li had confirmed that statutory discretions carry an implied obligation of reasonableness. The relocation principles in SZATV required evaluation of the practicability of relocation having regard to the applicant's personal circumstances.
The Full Court clarified three matters. First, a mistaken belief that s 473DE applies does not immunise the process; the operative effect of that mistake on the performance of the review task remains reviewable for unreasonableness. Second, the obligation to consider the s 473DC(3) discretion can arise even though s 473DC(2) states there is no duty to get new information. Third, when assessing relocation under the new statutory formula in s 36(2B)(a) (introduced by the 2014 Amendment Act), decision-makers must still consider risks of generalised violence falling short of a real risk of significant harm if those risks bear on the reasonableness evaluation for the particular applicant. The Court distinguished rather than overruled MZYQU, MZZJY and MZACX, holding that on a fair reading the Authority had in fact undertaken that evaluation.
After the decision, Authority reviewers must, when introducing a new relocation alternative not canvassed by the delegate, turn their mind to whether legal reasonableness requires inviting comment under s 473DC(3), particularly where the applicant's circumstances (detention, illiteracy, lack of representation) are known. Letters inviting comment on country information must allow a period that is in fact reasonable; reliance on the erroneous view that the Act imposes inflexible deadlines will not protect the decision. The case reinforces that the "on the papers" model is not a licence to decide without regard to fairness where the statute itself supplies a discretion to obtain information.
Key passages with plain-English translation
Paragraph [80]: "CRY16 establishes that particular circumstances may arise in the course of a review that may, as a matter of legal reasonableness, require the Authority to consider exercising its discretion under s 473DC. That is so notwithstanding that s 473DA(1) provides that the provisions of Div 3 of Pt 7AA of the Migration Act 'are to be taken to be an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Authority'."
Plain English: Even though the Act says the fast-track rules are the complete list of fairness requirements, the law still demands that the Authority act reasonably. In some situations that means it must at least think about asking the person for more information or comment.
Paragraph [93]: "The legislature is to be taken to intend that the Authority's statutory powers will be exercised reasonably."
Plain English: Parliament is assumed to want the Authority to use all its powers in a sensible way. If a decision looks arbitrary or unfair in the circumstances, a court can set it aside.
Paragraph [132]: "In our opinion, the primary judge was in error, at [159], in finding that the Authority failed to consider whether the level of violence in Mazar-e-Sharif rendered it unreasonable (as opposed to unsafe) to relocate. Similarly, in our view, the primary judge was in error, at [160], in finding that the Authority did not consider whether the established risk of generalised violence in Mazar-e-Sharif rendered it unreasonable for the respondent to relocate there."
Plain English: When we read all the Authority's reasons together, we think it did look at both the danger of living in Mazar-e-Sharif and whether it was practical for this man to move there. The judge below was wrong to say otherwise.
Paragraph [154]: "The invitation to comment was 'nothing more than the utilisation of a bare capacity', as described by Gageler J."
Plain English: Sometimes the Authority can simply ask for comments without using any specific section of the Act. That does not automatically make the invitation invalid, but the time given must still be fair.
What fact patterns trigger this precedent
This precedent is triggered when three elements coincide in a Pt 7AA review. First, the delegate has considered relocation only to one destination and the Authority proposes to rely on a different destination on the basis of new country information not before the delegate. Second, the Authority knows, or the material before it shows, that the referred applicant is in immigration detention, has limited English, is illiterate, lacks legal representation and has received the invitation only shortly before the stated (and incorrect) deadline. Third, the Authority proceeds on the mistaken basis that s 473DE compels an invitation, specifies a response period shorter than the three working days required by r 4.42 once actual notification is taken into account, and does not turn its mind to s 473DC(3) or any administrative discretion to allow more time.
The precedent also applies where the Authority refuses an extension request on the erroneous ground that the Act imposes inflexible deadlines when, on its own letter, it has stated that a response received before decision "may be considered". It is not confined to Hazara Shia claims from Afghanistan; any protection claim where a new internal relocation alternative becomes dispositive without effective applicant input will engage the same unreasonableness analysis. Conversely, if the delegate has already canvassed the precise relocation city ultimately relied upon, or if the applicant has had a meaningful opportunity to comment despite technical errors, the precedent will not assist.
How later courts have treated it
Although this judgment is relatively recent (12 March 2018), subsequent Full Court and single-judge decisions have treated the reasoning as authoritative on the limits of the Pt 7AA code. In Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 the Full Court applied the proposition at [80] that legal unreasonableness can require consideration of the s 473DC(3) discretion even within the exhaustive code. Courts have cited [91]-[94] for the proposition that an invitation issued under a mistaken view of s 473DE can still found an unreasonableness challenge if the time allowed is not reasonable in the applicant's known circumstances.
The relocation analysis at [117]-[140] has been followed in cases testing s 36(2B)(a). Single judges have treated the holistic-reading approach as correcting any suggestion that MZYQU, MZZJY and MZACX impose a rigid checklist; the question remains whether the reasons as a whole show the decision-maker weighed personal circumstances against generalised risks falling short of a real risk. No court has doubted the core holding that a mistake about the source of power does not immunise the decision from Li unreasonableness review. Later decisions have also cited [154] for the "bare capacity" analysis when the Authority invites submissions outside the strict s 473DC/s 473DE framework.
Still-open questions
The judgment left open whether s 473DC(1) should be read down so that it applies only to evidentiary "new information" and leaves the Authority with a non-statutory capacity to invite submissions or comments on legal issues. The respondent advanced detailed submissions on this point at [156], but the Court found it unnecessary to decide because the unreasonableness analysis under the CRY16 line of authority was sufficient. That question therefore remains for a future case in which the Authority expressly disclaims reliance on Pt 7AA powers.
A further open question is the precise content of the "administrative discretion to extend its earlier invitation" referred to at [62] and [118] of the primary judge's reasons. The Full Court did not decide whether Practice Directions issued under s 473FB can create a separate source of power to invite submissions outside the statutory discretions. The Minister contended that no such separate power exists; the respondent contended that the statutory scheme does not impliedly prohibit it. The Court noted at [159] that the point did not arise on the facts.
Finally, the interaction between legal unreasonableness and the "exceptional circumstances" threshold in s 473DD remains unsettled. The Authority had already decided exceptional circumstances existed before sending the letter. The judgment assumes that once that threshold is crossed the reasonableness of the procedure adopted is separately reviewable. Whether an Authority could lawfully decide exceptional circumstances exist yet still refuse to invite comment on reasonableness grounds is a question not squarely answered. Practising lawyers should watch for cases testing the outer boundaries of the "bare capacity" to invite comment and the circumstances in which the Authority must consider an interview rather than written comment for vulnerable detainees.