Fon17 v Minister for Immigration

The applicant, Fon17, sought judicial review of a decision made by the Immigration Assessment Authority (IAA). The dispute concerned whether the IAA acted unreasonably by failing to consider, or by not exercising, its power under section 473DC of the *Migration Act 1958* (Cth) to obtain new information relevant to the applicant's fast track review. The matter was heard by Judge Barnes in the Federal Circuit and Family Court of Australia.

The central legal issue before the court was whether the IAA's failure to refer to any consideration of its power under section 473DC to obtain new information, and its subsequent failure to obtain such information, constituted jurisdictional error. Specifically, the applicant argued that the IAA's powers to "consider" and "get" new information must be exercised within the bounds of reasonableness, and that an unreasonable failure to do so could invalidate its review decision.

Judge Barnes considered the provisions of section 473DC, which grants the IAA the power to obtain new information not before the Minister, but clarifies that the IAA has no duty to obtain, request, or accept such information. The court noted the applicant's submission that the IAA's failure to mention any consideration of this power in its reasons suggested it had not considered exercising it. While acknowledging that a mere failure to consider or exercise the power is not automatically jurisdictional error, the court was required to evaluate whether, in the specific circumstances of this case, the IAA's failure to consider obtaining documents from departmental files relating to the applicant's protection visa application had the character of legal unreasonableness. This involved examining the terms, scope, and purpose of the statutory power and assessing whether the failure lacked a rational foundation, evident justification, or was otherwise arbitrary or unjust.