It is entirely permissible to read reasons in respect of s 473DD and infer from what is not said that things were not considered

The Minister’s recycled argument that there is ‘no duty to give reasons’ in respect of s 473DD, and that it is not permissible to infer from what is not referred in reasons that the thing not referred to was not considered, was rejected in AUS17.

Although not subject of express analysis, this can be the only consequence of the reasoning of the plurality.

After confirming that s 473DD(b)(i) and (ii) are mandatory relevant considerations for s 473DD(a), the plurality said at [17]-[18]:

17. The Authority affirmed the decision of the delegate, finding amongst other things that the appellant had fabricated his claim to fear mistreatment at the hands of the EPDP and had embellished his claim to fear mistreatment at the hands of the Sri Lankan Army. The Authority recorded in the statement of reasons for its decision on the review that the letter was "new information" which it had not considered in making its decision on the review. That was for reasons which the Reviewer who constituted the Authority for the purpose of the review explained in the following terms:
"I accept the letter of support from Appathuray Vinayagamoorthy could not have been provided to the delegate as it was written after the delegate's decision. However, the information it provides recounts the claims already provided by the applicant and in that regard there is no reason to believe that the applicant could not have obtained a letter outlining this information earlier and provided it to the Minister. I am not satisfied that any exceptional circumstances exist that justify considering the new information."
18. Plainly enough, the Authority assessed the letter against the criterion specified in s 473DD(b)(i), finding that criterion not to be met. It went on to assess the letter against the criterion specified in s 473DD(a), finding that criterion not to be met. There being nothing to suggest that the letter was incapable of being assessed by the Authority to meet the criterion specified in s 473DD(b)(ii), what the Authority should have done, but evidently did not do, was assess the letter against the criterion specified in s 473DD(b)(ii) and then take that assessment into account in going on to assess the letter against the criterion specified in s 473DD(a).

In the Minister’s written submissions in AUS17, the recycled argument relating to the absence of a duty to give reasons in respect of a s 473DD decision appears at [46] and [51].

At the hearing, the following exchange also occurred:

EDELMAN J: Do you accept that, conversely, if there were circumstances that were so glaring or important that a failure to mention those circumstances might justify an inference that those circumstances had not been considered?

MR KENNETT: That may occur . …

See also the written reply submissions at [9] which contend that s 473DD findings are always material to the eventual decision and so therefore there is actualy a ‘duty’ to give reasons in respect of s 473DD, and the plurality at [6].

‘Materiality’ is back-door merits review: it even insulates credibility reasoning that was affected by actual legal error

See BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 181 at [119]ff where the Court dissects a credibility finding, and concluded that the Tribunal would have used the same credibility reasoning even if it had not asked improper questions requiring waiver of privilege, and denied the applicant the procedural fairness he should have been given–and even when those errors went directly to the credibility reasoning that was actually adopted.

‘Not open on the evidence’ is not the same as ‘no evidence’

The persistency with which these two separate jurisdictional errors continues to be conflated by the Minister deserves calling out.

Justice Perry did so in BMW16 v Minister for Immigration and Border Protection [2017] FCA 1036 at [23]:

A finding may taint a decision with jurisdictional error in cases where a particular finding is not open on the evidence, even though it cannot be said that there is no evidence on the point.

The IAA’s ‘visual impression’ that it forms based on observations in an interview is ‘new information’, and so should impressions based on reviews of audio or video recordings

If the IAA interviews an applicant, it might them form an impression of the demeanour of the applicant. This impression is ‘new information’ and attracts the obligation to invite comment, under s 473DE. In ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [16] the plurality said:

... The Authority's own visual impression of the referred applicant's appearance during such an interview would necessarily constitute new information within the power of the Authority to get because it would communicate knowledge of an evidentiary nature which would be open to be considered by the Authority to have the potential to bear on the Authority's assessment of the referred applicant's credibility[27] and which was not before the Minister when the delegate made the referred decision[28].

See also [17]:

Were some aspect of the referred applicant's appearance during the interview to end up being so glaringly undermining of the referred applicant's credibility as to lead the Authority to consider in advance of reasoning on the facts that the appearance of itself "would", as distinct from "might", be the reason or part of the reason for affirming the decision of the delegate[31], the Authority would come under an obligation to explain that to the referred applicant and to invite the referred applicant to comment[32]. ...

By parity of reasoning, the IAA’s impression it forms based on observations it makes from listening to or watching a recording should also be ‘new information’, because these impressions are also ‘knowledge of an evidentiary nature’.

Hence, it is unreasonable if the IAA ([25]):

... without good reason, ... does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given.

New information obtained under s 473DC must necessarily mean there are exceptional circumstances

One would have thought this was obvious, despite attempts to constrain the meaning and operation of s 473DD and excessively defer to the IAA. The High Court has now confirmed that proposition. In ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [16] the plurality said:

.. The new information so got by the Authority would then meet the preconditions to its consideration by the Authority on the basis that it was not and could not have been before the Minister when the delegate made the referred decision[29] and on the basis of the Authority's satisfaction that the existence of any informational gap is sufficiently aberrant within the scheme of de novo review for which Pt 7AA provides to make existence of the informational gap in the particular review alone enough to constitute "exceptional circumstances" justifying its consideration irrespective of how frequently such an informational gap might arise in practice[30].

It is not to the point that the Minister as personal non-compellable discretions that could bring about a different result

There are many cases which confirm that it is not to the point that the Minister as personal non-compellable discretions that could bring about a different result.

See eg NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; 220 FCR 44 at [107]:

…it is not relevant to this circumstance that four of the applicants are (like NBMZ) in community detention or that the Minister has discretions under the Act which have not been exercised.

Active intellectual process required for protection claims, not just s 501CA representations

The contention that claims and evidence do not require active intellectual consideration (ie that Omar does not apply) to protection claims and that Omar instead is confined to s 501CA matters is made with alarming frequency.

In BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 263 FCR 292 at [36] the Full Court said:

… Thus, in MZYPW v Minister for Immigration and Citizenship [ie not a s 501CA matter], the Full Court held that the Tribunal had fallen into jurisdictional error by failing to engage with the substance of the applicant’s submission in that it had merely recorded that a “submission” was made by the visa applicant and left unstated how the submission was resolved: [2012] FCAFC 99; (2012) 289 ALR 541 at [19]-[20] (Flick and Jagot JJ) and at [38] (Yates J).

This is precisely the requirement confirmed in Omar that consideration requires findings of fact ‘one way or the other’.

The requirement that illogicality or irrationality be ‘extreme’ is a gloss that adds nothing

The proposition to the contrary, that there is a requirement for illogicality or irrationality to also be ‘extreme’, is made by the Minister with alarming frequency and betrays an understanding of what exactly is required to make out a jurisdictional error of this kind.

In AWU16 v Minister for Immigration and Border Protection [2020] FCA 513 the Federal Court said:

[24] Referring to CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146; 253 FCR 496 at [61], the Minister submitted that the alleged illogicality or irrationality of reasoning must be of an “extreme” kind, not a matter on which reasonable minds might differ, and not a matter on which a supervising Court simply disagrees with a decision-maker, even emphatically.

[25] Save for the gloss arising from the word “extreme”, those propositions can also be accepted and are well established. There is nothing in High Court authorities such as Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 which suggests that the adjectival description of “extreme” is a necessary element in a finding of illogicality or irrationality. If the decision-maker’s fact finding is proven to be irrational or illogical, in a way which was material to the outcome of the review, that is sufficient. The stringency of the threshold arises in the need for the decision-maker’s reasoning to be capable, objectively, of being described as irrational or illogical.

Getting a witness to repeat a story multiple times will almost always produce an ‘inconsistency’

This proposition is obvious, and the resultant ‘inconsistency’ does not demonstrate that the witness is lying. The popular example used by Irving Younger of Max Steuer’s cross-examination in the Triangle Shirt Waist Factory fire case is a case in point: the witness there may well have fabricated her evidence, but it is self-evidently not always the case that an ‘inconsistency’ is an indicator that thw whole story is made up.

Nevertheless, particularly in immigration, decision-makers all too often seize on tiny ‘inconsitencies’ which only arise because the applicant has been forced to repeat his or her narrative multiple times over many years.

In W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379; 67 ALD 757 at [15] the Full Court observed:

As anyone with even a passing familiarity with litigation will know, to have to give a decision-maker three or more separate versions of the basis for a claim is an invidious position to find oneself in, even in the case of an honest witness. All the more so when the accounts have been provided by a person who speaks no English and who has required the assistance of an interpreter. It is inevitable that each version will be slightly different, and may even be very different once the impact of the interpreter is taken into account.