AEI18 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 744
•22 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AEI18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 744
File number(s): MLG 84 of 2018 Judgment of: JUDGE MANSINI Date of judgment: 22 May 2025 Catchwords: MIGRATION - application for judicial review of a decision of the (then) Immigration Assessment Authority – whether the Authority misinterpreted or misapplied s.473DD of the Migration Act 1958 (Cth) in the manner contended – whether the Authority failed to consider relevant claims or evidence – whether the Authority’s decision was attended by legal unreasonableness – jurisdictional error not established – application dismissed with costs. Legislation: Migration Act 1958 (Cth) ss. 36, 473BA, 473CB, 473DA, 473DB, 473DC, 473DD, 473EA, 474, 476. Cases cited: AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407
ABT17 v Minister for Immigration & Border Protection (2020) 269 CLR 439
APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494
BDF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 401
BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29
BYT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 157
Craig v South Australia (1995) 184 CLR 163
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26
DSC22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 530
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Home Affairs v DUA16 (2020) 271 CLR 550
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Plaintiff M1/2021)
Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 264 CLR 217
Plaintiff S157/2002 v Commonwealth of Australia 211 CLR 476
Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15
SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80
SZSZW v Minister for Border Protection [2015] FCA 562
Division: Division 2 General Federal Law Number of paragraphs: 108 Date of hearing: 9 July 2024 Place: Melbourne Counsel for the Applicant: Mr Krohn Solicitor for the Applicant: Ambi Associates Solicitor for the First Respondent: Mills Oakley Lawyers The Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 84 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AEI18
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
22 MAY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended in the title of the proceeding to Minister for Immigration and Citizenship.
2.The name of the Second Respondent be amended in the title of the proceeding to Administrative Review Tribunal.
3.The application as amended on 25 June 2024 be dismissed.
4.The Applicant pay the First Respondent’s costs fixed in the amount of $7,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE MANSINI
The Applicant is a citizen of Sri Lanka who sought a protection visa on the basis of claims to fear harm on return based on suspicions of being involved with the Liberation Tigers of Tamil Eelam (LTTE).
The Applicant now seeks judicial review of a tribunal decision to affirm an earlier administrative decision to refuse a protection visa.
For the reasons that follow, the application must be dismissed.
CONTEXT
The Applicant is of Hindu faith, Tamil ethnicity and a citizen of Sri Lanka.
On 10 September 2012, the Applicant arrived in Australia as an unauthorised maritime arrival.
On 22 April 2016, the Applicant applied for a safe haven enterprise (subclass 790) visa, which is subject of this application (the protection visa).
On 5 April 2017, a delegate for the First Respondent refused to grant the protection visa.
On 21 December 2017, the Immigration Assessment Authority (the Authority) affirmed the delegate’s decision on review.
The Authority’s Decision
The reasons of the decision maker commenced by identifying the materials it had considered and not considered in conducting its review: at [3] to [10]. Relevant to the grounds of review, the Authority had regard to:
(a)the material provided by the Department under s.473CB of the Migration Act 1958 (Cth) (Act);
(b)the 3-page statement of the Applicant and 2-page submission of the Applicant’s representative given to the Authority on 15 May 2017, which was new information not before the delegate, except to the extent of - relevantly:
(i)the submission that the Applicant is a prominent and one of few talented cultural instrument players in Australia and had been participating in several programs organised by Tamil, Hindu temple organisations and festivities including political related activities of the Tamils in Australia, on the basis that the Authority was not satisfied this was “credible personal information” that had it been known may have affected consideration of his claims or that he could not have provided this information to the delegate before a decision was made or that exceptional circumstances existed to justify the consideration of this new information: at [8];
(ii)references to and quotes from country information that was not before the delegate but which pre-dated the delegate’s decision and the Authority found related very broadly to human rights situation in Sri Lanka rather than to the personal circumstances of the Applicant: (at [10]); and
(c)a report of a Dr Poznanski dated 10 May 2017 (the Applicant’s treating psychologist) which the Authority considered was “new information” that met the criteria at s.473DD: at [7].
The Authority considered that part of the Applicant’s submission that the Applicant became unwell during the delegate’s interview on 21 February 2017, to the effect that he was not in a fit and proper state to properly answer questions in relation to his claim due to a mental condition. However, it was satisfied that the Applicant had been afforded an opportunity to present his claims and have all his claims tested at interview with the delegate and, in all of the circumstances, was not satisfied that the circumstances warranted an invitation to the Applicant to give new information by interview or otherwise: at [7].
The Applicant’s claims were then summarised: at [11].
The Authority conducted its “refugee assessment”: at [12] to [34]. From [13], the decision is affected by a typographical error such that the paragraph numbering starts again at [1] (for ease of reference, the second use of a number to enumerate a paragraph is marked in these reasons with a (2)).
Pertinent to the grounds of review, the Authority expressly accepted certain aspects of the Applicant’s claims, including that which may be summarised as follows:
(a)The Applicant is Hindu and an ethnic Tamil born in Chilaw in the North Western Province:[1](2).
(b)The Applicant played the Nadaswaram which is a classical Tamil instrument that is also rooted in Hinduism: at [13](2).
(c)Whilst not prepared to speculate on the reasons for the disappearance, the Applicant’s friend who was a professional musician disappeared in 2003 and is most likely deceased: at [2](2).
(d)The Applicant was employed as an artist from 2004 and played in the North and the East approximately 100-150 times and Jaffna about 35-40 times. During this time, he did not have any problems when travelling through government checkpoints and was able to play to LTTE and government audiences alike without incident: at [5](2).
(e)The Sri Lankan authorities made routine checks and monitored the boarding house in Colombo as a result of it having Tamil residents: [6](2).
(f)During the time of the conflict and also shortly after, events such as suicide bombing took place: at [8](2).
(g)The Applicant was extorted for money during an incident in 2012 (which the Authority there noted without necessarily accepting that the Applicant described as four Sri Lankan Criminal Investigation Division (CID) officers having attended the boarding house where he was staying, who held a gun to his stomach, accused him of being part of the LTTE, asked him for money and threatened to kill him if he did not provide the money): [10](2).
(h)After the extortion incident, the Applicant left the boarding house and stayed at a different place each night before leaving Sri Lanka illegally by boat: [10](2).
(i)Due to the Applicants’ subjective fears, the Applicant made arrangements to leave Sri Lanka illegally in August 2012: at [11](2).
(j)The Applicant has mental health issues, was seeing Dr Pozananski intermittently and had received three operations in Australia: at [20] and [22].
(k)The Applicant had left Sri Lanka illegally (in breach of the Immigrants and Emigration Act (I&E Act)) in 2012 and, on return, would be subject of processing and routine investigation at the airport on return to Sri Lanka and in addition to a fine may be detained for a short period of time which would not amount to serious harm in this case and would not be discriminatory but rather an equal application of the laws that apply to all Sri Lankans: at [25] and [27] to [31].
However, the Authority did not accept certain aspects of the Applicant’s claims, including the Applicant’s version of events regarding the CID and that in 2012 the CID was looking for the Applicant: at [6](2). Further, and although the Applicant may have had a subjective fear that he could be abducted, the Authority expressly did not accept the Applicant’s claims that:
(a)His musician friend’s disappearance had anything to do with the Applicant: at [2](2).
(b)There was targeted interest in the Applicant by any Sri Lankan authorities including the CID: at [6](2).
(c)The CID thought the Applicant was associated with the LTTE because he travelled to the North and East Provinces: at [7](2).
(d)The Applicant had any profile that would have attracted the attention of the Sri Lankan authorities including the CID or that the CID or any Sri Lankan authority made any inquiries regarding the Applicant personally including the extortion incident - which was, rather, consistent with country information that during and shortly after the conflict the CID and paramilitary groups extorted people for money and kidnapped and harmed people, and was found to be an opportunistic and isolated event: at [10](2).
(e)That the Applicant suffered any abuse or harm on account of playing the Nadaswaram instrument or as a result of it being a traditional Hindu instrument: at [13](2).
The Authority considered the country information that was before it in the context of the Applicant’s claims which had been accepted. The Authority referred to the Department of Foreign Affairs and Trade (DFAT) country information which was found to indicate that the situation in Sri Lanka had improved for Tamils since the change of government: at [12](2). And, at [13](2)-[14], the Authority considered other DFAT information which was summarised there as indicating an improvement on the situation and significant reduction of certain risk.
Ultimately, the Authority concluded that there was no real chance of the Applicant being harmed by the Sri Lankan authorities including the CID or any other group on the basis of: being a Tamil male who worked in a former LTTE controlled area; any real or imputed support for the LTTE or real or imputed support for Tamil separatism; as a Tamil musician or artist who plays a traditional Hindu Tamil instrument; his religion; or any extortion threats then or in the reasonable foreseeable future: at [16].
The Authority was satisfied that the Applicant would not suffer serious harm on account of his mental health issues and, notwithstanding the scarcity of available treatment, was not satisfied that the Applicant would be unable to obtain appropriate treatment for his post-traumatic stress disorder and mental health issues on return to Sri Lanka: at [20] to [21]. Further, the Authority considered that the Applicant did not elaborate in evidence on the nature of his claimed medical condition or why he would not obtain appropriate medical treatment for it especially if he is put into prison: at [22]. In the following paragraph and expressly regarding the Applicant’s fears that he would not obtain appropriate medical treatment in Sri Lanka for his medical condition if put into prison, the Authority found that, in addition to other matters dealt with in the reasons, the Applicant did not have a profile that would attract the attention of any Sri Lankan authorities and accordingly would not be imprisoned: at [23].
With regard to DFAT country information about the processes and consequences for a Sri Lankan national who had departed illegally in contravention of the I&E Act, the Authority found that the absence of identity concerns, criminal or security records meant the Applicant would not be at risk of harm during or as a consequence of the likely routine investigation or that would point to a finding he would be followed up later: at [26].
At [32] the Authority summarised that it was not satisfied on the evidence before it that:
(a)The (mere) fact of being an asylum seeker, Tamil asylum seeker or having departed Sri Lanka illegally was enough to give rise to a real chance of serious harm on return; and
(b)The Applicant, a Tamil asylum seeker with his history and attributes, faced a real chance of serious harm on that basis.
Having regard to the totality of the material before it, the Authority was not satisfied that the Applicant faced a real chance of persecution on return to Sri Lanka: at [33].
Having considered the evidence before it the Authority was satisfied that the Applicant did not meet the definition of “refugee” in the Act and therefore did not meet the criterion at s.36(2)(a): at [34].
The Authority conducted its “complementary protection assessment”: at [35] to [40].
Having accepted that the Applicant may have vulnerabilities associated with his mental and general health that may make it more difficult for him to reestablish himself in Sri Lanka, the Authority was not satisfied that the Applicant’s mental health as reported would expose him to mistreatment by the Sri Lankan authorities amounting to significant harm. Further, the Authority considered that even if the Applicant were to feel subjectively traumatised by any interaction with Sri Lankan authorities, such trauma would not amount to significant harm: at [38].
The Authority concluded that the Applicant may be charged with an offence under the I&E Act because he departed Sri Lanka illegally and, as a result, he may be remanded in custody for a short period either at the airport or at a prison, while waiting to be brought before a magistrate who would most likely quickly grant bail. The Authority did not accept that the Applicant’s profile would result in him being subject to a more intensive interrogation that might give rise to significant harm. Likewise the Authority did not accept that there that was a real risk that the Applicant would be subjected to the death penalty, be arbitrarily deprived of his life, suffer torture or ultimately be exposed to significant harm: at [39].
In summary and in reliance on its findings underpinning the refugee assessment, the Authority summarised that, having regard to the circumstances and profile of the Applicant, it did not accept there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka, there is a real risk that he would suffer significant harm and therefore did not meet the “complementary protection” criterion at s.36(2)(aa) of the Act: at [40].
APPLICATION BEFORE THIS COURT
On 12 January 2018, this application for judicial review was filed with a short accompanying affidavit. The originating application was amended on 25 June 2024. By the amended application, the Applicant identified 3 grounds of judicial review numbered 1, 3 and 4 in the following terms:
1. The Authority fell into jurisdictional error in not considering relevant considerations,
including claims, integers of claims or material questions of fact or information.3. The Authority fell into jurisdictional error in that it erred in interpreting or applying the law.
4. The Authority fell into jurisdictional error in that it made findings without a logically
probative basis or was otherwise legally unreasonable.The Applicant also filed a supplementary court book, outline of submissions accepted for filing on 25 June 2024 and a list of authorities.
For their part, the First Respondent filed a response, a court book, an outline of submissions accepted for filing on 8 July 2024 and a list of authorities.
On 9 July 2024, the matter proceeded to final hearing before the Court as presently constituted. The Applicant was represented by Counsel and the First Respondent was represented by a solicitor advocate.
Statutory framework
A “privative clause decision” as defined at s.474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia 211 CLR 476 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) at [76].
The task on judicial review is not to undertake a general review of the decision or substitute it with a decision which the Court considered ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error. And, where appropriate, to order that the matter be remitted and reconsidered according to law: see Craig v South Australia (1995) 184 CLR 163 (Brennan, Deane, Toohey, Gaudron and McHugh JJ) as cited in BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443 (Kelly J) at [19]-[20].
The grant of a protection visa is (and at the relevant times, was) confined by the criteria at s.36 of the Act. Relevant to the present application, ss.36(2)(a) and (aa) provides (and, at the relevant times, provided) that “a” criteria for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
An administrative decision maker is required to refuse to issue a visa absent the requisite state of satisfaction that the criteria applicable to the visa application are satisfied: s.65 of the Act.
Division 3 of Part 7AA of the Act (as in force at the relevant times) governed the conduct of a review by the Authority of a “fast track reviewable decision” which, relevantly, included a decision to refuse to grant a protection visa to a “fast track applicant”.
Part 7AA of the Act was arranged in eight divisions comprising ss.473BA-473JF.
Division 1 of Part 7AA commenced with a self-described “simplified outline” at s.473BA including that Part 7AA provided a limited form of review in relation to the decisions known as fast track reviewable decisions. A fast track applicant could not at the time apply for review directly to the Authority and decisions of this kind were otherwise generally not reviewable under the Act. In conducting its review, the Authority was required to pursue the objective of providing a mechanism of limited review that was efficient, quick, free of bias and consistent with then Division 3. The Authority did not hold hearings and was required to conduct its review on the papers save that, in exceptional circumstances, it could consider new material and could invite a referred applicant to provide, or comment on, “new information”.
Division 3 of Part 7AA, which concerned the subject, “Conduct of review”, was arranged in three subdivisions comprising ss.473DA-473DF.
Section 473DA provided that Division 3 (among two other provisions which are presently immaterial) was taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority.
Section 473DB provided that, subject to Part 7AA, the Authority was required to review a fast track reviewable decision that had been referred to it by considering the review material provided to it and to do so “without accepting or requesting new information” and “without interviewing the referred applicant”.
Subdivision C of Part 7AA, most relevantly at ss.473DC – 473DD, concerned how the Authority may “get” and “consider” new information that was not before the Minister when the decision was made under s.65:
473DC Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
By s.473EA of the Act, a decision of the Authority on Part 7AA review was required to be accompanied by a written statement which set out both “the decision” on review and “the reasons for the decision”.
It falls then to address the 3 grounds of review, as numbered on the amended application, but not in that order.
GROUND 3 – ERRORS IN THE INTERPRETATION OR APPLICATION OF THE LAW
By this third ground, the Applicant contended that the Authority made an error of jurisdiction in interpretation or application of the law in respect of its decision not to get new information by way of interview under s.473DC of the Act and its decision not to consider certain new information that was not before the delegate pursuant to s.473DD. Particular (c) referred to s.473DC and referred to the Applicant's activities in Australia as the matter about which the Authority ought to have “got" more information. Particulars (a) and (b) referred to s.473DD. By the first particular, the Applicant mentioned "all" information in the submission of the Applicant’s representative to the Authority of 15 May 2017 (Applicant’s submission) and cited paragraphs [8]-[10] of the Authority's reasons. However, the only illumination of the "new information" subject of this ground was with reference to paragraph [8] - that is, to that part of the Applicant’s submission which was described as his musical prominence and related activities in Australia.
The Respondent submitted that the ground could not succeed because the Applicant had not identified how the consideration of the new information subject of this ground would have affected the Authority’s assessment of his claims and otherwise could not make out legal unreasonableness where the Authority relied on the Applicant’s own evidence.
Applicable principles
The nature of the powers at ss.473DC and DD were expressed differently to the extent that s.473DC (Getting new information) was permissive in the discretion of the Authority where s.473DD (Considering new information in exceptional circumstances) was proscriptive and prohibited except where the statutory conditions were met.
In the context of the discretion to get new information, “new information” meant any document or information of an evidentiary nature that was not before the Minister when the decision was made under s.65 to refuse the application and which the Authority considers may be relevant: s 473DC(1); AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ) (AUS17) at [3]; Minister for Home Affairs v DUA16 (2020) 271 CLR 550 (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ) at [25].
In AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407 (Allsop CJ) at [33], the Federal Court observed that:
…information will be relevant if it is capable of rationally affecting the IAA’s assessment of the probability of the existence of some fact about which the IAA might be required to make a finding in determining afresh whether or not to be satisfied that the criteria for the grant of a protection visa have been met.
The authorities make it clear that there was no obligation on the Authority to “get” new information. The provision for getting new information under s.473DC does not constitute a duty on the Authority to get, search for, request or accept any new information that was not before the Minister in any circumstances.
In respect of s.473DD, the power to “consider” new information is not available unless the criteria for doing so are met. To this end, s.473DD imposes a duty to assess such new information in making a decision whether it may proceed to ‘consider’ it. In AUS17, the plurality held at [6]:
. . . s 473DD must be construed to impose a duty on the Authority to assess new information that it has got against the specified criteria. Having performed that duty to assess the new information against the specified criteria, the Authority must take that new information into account in making its decision on the review if those criteria are met and must not take that new information into account in making its decision on the review if those criteria are not met.
In BDF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 401 (BDF17), Kenny J held at [64]:
To meet the requirement in s 473DD(b)(ii), the IAA must be satisfied that the information is new information given, or proposed to be given, by the referred applicant, which: (1) is credible information about an identified individual, or an individual who is reasonably identifiable; (2) was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant’s claims: see Plaintiff M174 at [34].
See also AUS17 at [2]-[12] and [23]-[24]; DVO16 v Minister for Immigration and Border Protection [2021] 95 ALJR 375 at [16]-[21].
In undertaking the assessment of whether new information was “credible personal information” for purposes of s.473DD(b)(ii), the threshold for what is “credible” is a relatively low bar - all that was required is that the Authority reach the state of satisfaction that the new information was information which was capable of being accepted as truthful or accurate or genuine, as distinct from an assessment of whether the new information was true: CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (Bromberg J) at [40]; subsequently endorsed by a majority of the Full Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150 (BTW17) (Besanko, Mortimer and Jackson JJ) at [75]-[77] and since applied in DSC22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 530 (Snaden J) at [57]. In BTW17, at [76]-[77], the Full Court included the following explanation of the task which is apt to the present case:
[76] Particularly in a scheme premised on a review “on the papers”, there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant’s explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa applicant (which would occur in deciding if the new information were “true”). That difficulty is that the Authority is, in substance, taking into account material that is not before it on the review in determining the credibility of the visa applicant. That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority: they cannot be based on extraneous material, which is what “new information” is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 is correct.
[77] Viewed in its context, as Bromberg J identified at [42], the terms of s 473DD(b)(ii) operate as a filter, which the Authority is required to apply to “new information” proposed to be presented by a visa applicant. The subsection sets a threshold, requiring a visa applicant to satisfy the Authority the new information has that character, or, if it does not have that character, that it was not and could not have been provided to the Minister or her or his delegate prior to the s 65 decision (s 473DD(b)(i)). In either case the Authority must still be satisfied there are “exceptional circumstances” justifying including the new information in the material to be considered by the Authority on its review. Considering s 473DD as a whole, there is no basis to suppose Parliament intended some kind of intensive and final analysis of the probative value of new information to occur within the confines of s 473DD(b)(ii). As the Full Court observed in BDY18 at [23]-[26], there is some overlap, and the factors in (b) may well inform the factors in (a).
The Authority is not required to give reasons in relation to its decision: s.473EA of the Act; see also BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) at [16].
Further, the Authority is under no obligation to engage in any particularly formulaic consideration of s.473DD(b), rather it will be sufficient if the Court on judicial review is able to infer from the Authority’s reasons that the requisite assessment has occurred: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 (Markovic J) at [79].
The power and discretion conferred on the Authority by ss.473DC and 473DD are subject to the implied condition of reasonableness: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (French CJ, Hayne, Kiefel, Bell and Gageler JJ) (Li); ABT17 v Minister for Immigration & Border Protection (2020) 269 CLR 439 (Kiefel CJ, Bell, Gageler and Keane JJ) at [3] citing Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 264 CLR 217 (Gageler, Keane, Nettle, Gordon and Edelman JJ) (Plaintiff M174) at 227.
Particular (c) – did the Authority misinterpret or misapply s.473DC?
The Applicant accepted that there was no obligation on the Authority to “get” new information. The issue taken is with the exercise of the power and whether the Authority was within the bounds of legal reasonableness.
By the Applicant’s submission, the Applicant had requested a proper interview to be held so that he may do his best to clarify the claims better and his fear of further persecution if he is returned to Sri Lanka. That request was made in the context of the submission that the Applicant had become unwell during the course of the interview before the delegate on 21 February 2017 and could not continue the interview in his mental state. The Applicant’s submission referred to the psychologist’s report of 10 May 2017 in support.
The Authority’s reasons disclose that it considered the request for an interview in the proper context in which that request was made – that is, in the context of the Applicant’s submission about the deterioration of the Applicant’s mental health during the course of the interview: at [7]. There the Authority analysed the substance and progress of the delegate’s interview on 21 February 2017, the materials before the delegate (including the psychologist’s report dated 10 May 2017) and considered the Applicant’s mental disposition at the time of interview and competence to give evidence. The decision maker observed that the Applicant was represented at interview and had not raised the issue of his fitness to participate during the interview after a short adjournment or in post-hearing submissions to the delegate and had not requested a further adjournment of the interview at the time. The Authority concluded, at [7], that:
The applicant was given an opportunity to put forward all of his claims via his representative in his SHEV application and at his SHEV interview. I do not accept the applicant’s representative’s submission that the applicant was unable to properly answer questions in relation to his claims due to his mental condition. The applicant has, in my view, had an opportunity to present his claims and to have his claims tested in his interview conducted by the delegate and taking all of the circumstances into account, I am not satisfied the circumstances of this case warrant inviting the applicant to give new information whether by interview or otherwise.
The Authority also went on to consider, in the next paragraph of its reasons, the subject category of new information contained in the Applicant’s submission: at [8]. In summary, that the Applicant’s representative was instructed to convey to the Authority that the Applicant now believed it was relevant for him to inform the Australian authorities of his rare and prominent status as a cultural instrument player in Australia and participation in festivities including politically related activities of the Tamils in Australia (the sur place claim). The Authority was plainly cognisant that there might have been more the Applicant could have said about the sur place claim as its reasons outlined the absence of details provided such as of specific events or organisations, examples of exposure to the media or recordings made. However, again, the Authority reiterated that the Applicant was represented at interview and in preparing his application and had been made aware that the onus was on him to provide all evidence relevant to his protection claims.
As the First Respondent sought to emphasise, the Authority had also made a finding on the Applicant’s own evidence that his status as a musician of cultural importance to Tamils had not presented any problems to him when travelling through checkpoints to perform around Sri Lanka and had not affected his ability to play to LTTE and government audiences alike without incident including during the height of the conflict. Moreover, the Authority found the Applicant to have no particular profile that would have attracted the attention of the Sri Lankan authorities including the CID and that, on the country information before it, the situation for Tamils had since approved.
It was a matter for the Authority to weigh the relevant information before it in deciding whether to exercise the discretion at s.473DC. When the reasons are read as a whole, the Authority gave logical reasons for its decision not to get more information about the sur place claim by interview or otherwise.
In all of the circumstances, and against the context of the fast track framework and the overarching objectives of the legislation, it was not legally unreasonable (in the sense of the authorities) that the Authority did not invite the Applicant to an interview or otherwise seek to get new information in order to test the claims subject of the Applicant’s new information about his sur place claim. The statutory scheme did however afford the Applicant the opportunity to bring his sur place claim before the Authority as new information and meet the hurdles set by s.473DD which is subject of the particulars (a) and (b) to this ground.
Particular (a) and (b) - did the Authority misinterpret or misapply s.473DD?
The remaining particulars to this ground are concerned with the Authority’s decision not to consider the new information earlier summarised and defined as the sur place claim, pursuant to the provision at s.473DD.
There is no issue taken in this case with the sequence of the Authority’s assessment or that it accorded with the approach outlined in AUS17. The Applicant’s challenge was limited to the Authority’s findings in relation to s.473DD(b)(ii) which in turn was said to affect its finding as to whether there were exceptional circumstances to justify its consideration within the meaning of s.473DD(a).
The reasoning of the Authority at [8] begins with a summary of the new information that the Applicant had wished to provide before going on to assess this information against the criteria at s.473DD. As summarised above, the Authority did not consider new information provided in the Applicant’s submission to the extent of the submission that the Applicant is a prominent and one of few talented cultural instrument players in Australia and had been participating in several programs organised by Tamil, Hindu temple organisations and festivities including political related activities of the Tamils in Australia: at [8]. The Authority considered that the Applicant was represented before the delegate and aware that the onus was on him to provide all evidence relevant to his protection claims. And, absent any examples of exposure to the media or recordings made of him, and absent an indication of any specific events or organisations he played in, the Authority reasoned that in the circumstances the Applicant had not satisfied the decision maker that the subject part of the submission was “credible personal information” that, had it been known, may have affected consideration of the Applicant’s claims or that he could not have provided this information to the delegate before a decision was made. The Authority also found that it was not satisfied that exceptional circumstances existed to justify consideration of this new information.
Having decided not to consider this new information, as earlier referenced, the Authority did find on the materials before it that the Applicant had played the Nadaswaram which is a classical Tamil instrument that is also rooted in Hinduism (at [13](2)) and that the Applicant had been employed as an artist from 2004 and played in the North and the East approximately 100-150 times and Jaffna about 35-40 times - during which time, he did not have any problems when travelling through government checkpoints and was able to play to LTTE and government audiences alike without incident: at [5](2).
The statutory context is important in that Division 3 of Part 7AA provided an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Authority. Ordinarily, and with limited exception, the Authority was to conduct its review on the papers and on the basis of the review material provided by the Department to the Authority pursuant to s.473DB. The Authority was to only consider new information that was not before the delegate if the criteria at s.473DD were met. Such power was to be exercised within the bounds of reasonableness, and where an unreasonable failure to exercise a power pursuant to Division 3 of Part 7AA could render invalid a purported performance by the Authority of the duty imposed on it by s.473CC to conduct a review and either affirm or remit the decision under review.
Although the Authority did not expressly reject the new information as untrue, the Authority’s finding that it was not satisfied that the subject new information constituted “credible and personal information” for purposes of s.473DD(b)(ii) apparently turned on the lack of specificity, examples and supporting evidence. For purposes of the threshold at s.473DD(b)(ii), the bar was set low and it was not for the Authority to be satisfied as to the truth or indeed proof of the matter but rather whether the new information was at least inherently believable. The new information in this case was about an identifiable individual (the Applicant) and was not known to the Minister at the relevant times. Accordingly, it is accepted that the character of the Applicant’s new information subject of the sur place claim amounted to “credible and personal information” for purposes of s.473DD(b)(ii) in the sense of the authorities - which in turn, at least conceivably, might have affected the Authority’s assessment of s.473DD(a).
It falls to consider whether, as the First Respondent submitted which submission was not understood to be opposed, the Authority’s ultimate conclusion could realistically have been different had the Authority considered the new information subject of the sur place claim: consistent with the approach taken in BYT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 157 (Stewart J) at [46]. Here, the Applicant has not demonstrated that any such error was material. It is not apparent how the limited personal information included in the Applicant’s submission could have affected the outcome of the review. The Applicant has not taken issue with the Authority’s findings (made in acceptance of his own evidence) that he had performed his instrument across Sri Lanka to a range of audiences during times of conflict and since without issue. The extortion incident had no claimed or apparent connection with the Applicant’s instrument, performances or status as a performer. The Applicant has not sought to explain how his more recent musical and performance activities in Australia would result in an elevated risk on his return. Having regard to those findings and the nature of the information in question, without more, it is not apparent how the outcome could have differed.
Accordingly I am not persuaded that this ground 3 can succeed.
GROUND 1 – FAILURE TO CONSIDER RELEVANT CONSIDERATIONS
By his first ground of review, the Applicant claimed that the Authority engaged in an error of jurisdiction by not considering relevant considerations including claims, integers of claims or material questions of fact or information, particularised as follows:
(a) The Authority did not consider with the engagement required by law the evidence, submissions and information relating to torture and the abuse of human rights in Sri Lanka, especially of persons in detention. (CB 250-252, [26], [31], [38]-[39])
(b) The Authority did not consider with the engagement required by law the question whether the Applicant may suffer harm while in detention, simply as a person in detention, given the entrenched culture of torture and abuse of persons in detention. (CB 250-252, [26], [31], [38]-[39])
(c) The Authority did not consider whether the Applicant may be at risk of harm because of the publicity given to his work as a traditional musician, in Australia.
(d) The Authority did not consider with the engagement required by law whether the Applicant may be at risk of harm by future extortion under threat. (Submissions to IAA, CB 229; Decision and Reasons CB 248, [16]; CB 252, [37])
(e) The Authority did not consider whether the Applicant's problems of mental and physical health were serious harm amounting to persecution or significant harm within the meaning of sections 5H, 5J, 36(2)(a) and 36(2)(aa) of the Migration Act 1958 ("the Act"), because they were the result of him already having suffered a terrifying instance of extortion with threats at gunpoint. (Decision and Reasons CB 248, [16]; CB 249, [24]; CB 250, [29]; CB 252, [37])
The First Respondent asked the Court to find that none of the particulars make out any error in the Authority’s decision.
It is well established that the Authority must consider each necessary and relevant consideration and integer of the claim, and must consider each material question of fact squarely raised by the material before the Authority: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Mason J) at [19]; SZSZW v Minister for Border Protection [2015] FCA 562 (Perry J) at [13]-[18]; Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26 (Gummow and Callinan JJ) at [24]; see also SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80 (Madgwick and Conti JJ) at [29] ; and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 (Black CJ, French and Selway JJ) at [58].
Particulars (a) and (b) – evidence of torture, abuse of human rights and harm in detention
These particulars mutually complain of a failure to consider relevant considerations arising at paragraphs [26], [31], [38] and [39] of the Authority’s decision. As summarised above, in those parts of the decision, the Authority made findings relevant to the Applicant’s claims to fear harm on return as an illegal asylum seeker including with regard to his profile, mental health and the risk of questioning, investigation and detention.
The Applicant acknowledged that the Authority made some brief reference(s) to relevant country information but contended it did not engage adequately with the detail and complexity of the material before it. Specifically, the Applicant sought to highlight a series of paragraphs of country information and submissions that were before the Authority said to establish that, even after the war and change of government in 2015, there was an entrenched and pervasive culture of torture and abuse by the police and other authorities especially of persons in custody and even for minor offences – with which the Applicant contended the Authority did not engage. Further, given the Applicant’s fears of the authorities, his diagnosed problems of mental health (stress, anxiety, depression, PTSD) and likely deterioration of his health on return and projected detention for a short time as an illegal emigrant, the Applicant asked the Court to find that the Authority was required to engage with the whole of the material as to human rights abuse including of persons in detention and because of the general culture of violence and torture by police and other authorities.
The Authority did give consideration, in a number of parts of its reasons namely the subject paragraphs (see also at [29]), to the possibility of imprisonment and detention and the likely risk and harm including by taking into account the Applicant’s mental health issues but considered the balance of the evidence did not meet the requisite statutory criteria, contrary to the Applicant’s contentions.
As the First Respondent correctly submitted, the assessment of country information and the weight to be given to it was a matter for the Authority. The Applicant points to different points of emphasis but a redetermination of the weight to be given to those points is not the role of the Court on judicial review.
In any event, having rejected the Applicant’s claims of any actual or suspected identity, criminal, security or profile concerns and made findings of insufficient evidence about the nature of the harm feared in connection with the Applicant’s claimed mental health and general health issues, the country information relied on in support of these particulars would not take the matter further.
For completeness, to the extent that the Applicant referred the Court to new information in the Applicant’s submissions relevant to a UN report about torture as a common practice and ITJP reports of abduction, torture and sexual assault in 2015 and 2016, that new information does not advance the Applicant’s case because the Authority decided not to consider it on application of s.473DD. As the Applicant did not articulate or develop any issue in these proceedings with that part of the Authority’s decision, and the Authority did not have that material before it, there was no obligation to consider that new information.
Particular (c) – activities as a traditional musician in Australia
This particular was linked to the alleged error subject of Ground 3 and the new information earlier defined as the Applicant’s sur place claim.
With regard to those findings (above), the Authority erred in its decision not to consider the new information that was not before the delegate in the form of a submission about the Applicant’s elevated profile and risk due to his work and prominence as a musician in Australia.
Arguably that same error amounts to a failure to consider a relevant consideration. However, as reasoned above, the Applicant has not demonstrated in these proceedings that such error was material to the outcome.
Particular (d) – possible future extortion
This particular related to the Applicant’s claim of possible future extortion as a basis for protection under s.36(2)(a).
As the Applicant acknowledged, and summarised above, the Authority made positive findings as to accept the Applicant’s claim of a past instance of extortion for money.
The Authority’s reasons reflect that the Authority did make findings relevant to the question of possible future extortion, for example at [10](2) where the Authority found that the past extortion incident was essentially a one-off event not linked to the Applicant’s profile or personal to the Applicant. Further, that the country information supported a conclusion that the past extortion incident was explicable as the CID having acted outside their authority as was the case during the years of the conflict and soon after.
An express finding was made at [16] about the (lack of) real chance that the Applicant would be harmed on return on the basis of any extortion threats both at the time of the Authority’s decision or in the reasonably foreseeable future.
Without more, there is no basis to find a failure to consider a relevant consideration to the standard required by the authorities.
Particular (e) – mental health problems
This particular sought to impugn the Authority’s findings in respect of the Applicant’s mental health in that the Authority was said not to have considered that those issues were the result of the Applicant’s prior experiences including the extortion incident and needed to consider whether a mental health break down on return would be continued harm amounting to persecution.
The Applicant properly acknowledged that consideration was given to his mental health issues - at least to the extent of those that the Applicant articulated in evidence, which the Authority accepted the Applicant to have, including consideration of whether these problems made him more vulnerable and a target for harm: see [17] – [21], [24], [29] and [38].
The Authority’s reasons disclose engagement with the Applicant’s claimed fear of harm associated with his mental health issues on the evidence that was before it, including the letter of Dr Poznanski.
I am not able to identify a failure to consider a relevant consideration in the requisite sense.
Resolution of Ground 1
Consistent with the guidance of the High Court of Australia in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Plaintiff M1/2021), the requisite level of engagement is to a degree dependent on the nature, form and content of the representations.
With the exception of the error associated with the new information about the Applicant’s sur place claim, when regard is had to the manner in which the relevant aspects of the Applicant’s claims were put, and the detail of the findings made by the Authority, in my view the Authority gave the necessary consideration. Further, the Authority gave logical and intelligible reasons for its findings that the Applicant did not face a real chance of serious harm or would suffer significant harm on return and therefore did not meet the statutory criteria.
In respect of the failure to consider the new information defined as the Applicant’s sur place claim, for the above reasons it was a relevant consideration and in error but nonetheless immaterial to the outcome and does not assist the Applicant in making out this ground.
The first ground of review does not establish jurisdictional error.
GROUND 4
Particulars:
PARTICULARS
(a) The Authority had no logically probative basis to reject the Applicant's claim that the CID were looking for him, when he said, ". I do not accept that in 2012 the CID was looking for the applicant in particular and although he may have had a subjective fear that he could be abducted, I am not satisfied that there was targeted interest in the
applicant by any Sri Lankan authorities including the CID." (CB 245, [6])(b) Further or in the alternative to the Particulars to Ground 1, the Authority had no
logically probative basis to exclude a real chance that the Applicant may suffer persecution or significant harm, whether physical or mental, in detention. (CB 250-252, [29], [38])(sic.)
This fourth ground was plead further or in the alternative to the 5 particulars to ground 1 and again there was a conceded overlap between them. In addition, this ground sought to challenge the Authority’s conclusion that the CID were not looking for the Applicant on the occasion he was found to have been extorted at the boarding house in 2012.
The First Respondent contended that the Authority’s findings were robust and asked the Court to find that this ground represented an invitation to engage in impermissible merits review.
By extension of the uncontroversial principle that a decision maker is required to act reasonably, in a legal sense (as in Plaintiff M174), the Applicant relied on the authority in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (Lord Greene M.R, Somervell L.J and Singleton J) for the proposition that the Tribunal must not make findings so unreasonable that no reasonable decision maker could so have acted.
Acknowledging the caution of the High Court against use of labels such as “proper, genuine and realistic consideration” (Plaintiff M1/2021 at [26]), legal unreasonableness may be found where a decision maker comes to a conclusion that no reasonable decision maker could have reached, or makes a decision that is devoid of an “evident and intelligible justification” (Li at [68] and [76] per Hayne, Kiefel and Bell JJ). It may also be found “if there is no logical connection between the evidence and the inferences or conclusions drawn” (see Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15 (Gordon J) at [43]; citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (Gummow ACJ, Heydon, Crennan, Kiefel and Bell JJ) (SZMDS) at [135]). However, the test has been described as “necessarily stringent” (Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ) at [11] ). It is not met where reasonable minds could have come to different conclusions (SZMDS at [130]-[131] per Crennan and Bell JJ).
Particular (a) – no logically probative basis to reject the claim that the CID were looking for the Applicant in 2012
The first particular to this ground essentially challenges the Authority’s findings that the Applicant was not expressly sought after by the CID in respect of the 2012 extortion incident at the boarding house: at [6](2).
The Authority’s reasons disclose that it took into account the Applicant’s statement provided with his initial visa application and at the interview. The Authority considered the Applicant’s evidence that the boarding house was targeted because the CID knew that Tamils lived there and that the owner of the boarding house called him many times whilst travelling to say that the CID was looking for him; but found those accounts implausible given the Applicant’s consistent statements (in the original application and at interview) that he did not have any issues with the Sri Lankan authorities and was able to move freely through government checkpoints and play his instrument to government audiences. The Authority took into account relevant country information and, at [6], expressly accepted that:
Many Tamils, particularly in the north and east, reported being monitored, harassed, arrested and/or detained by security forces during the conflict and the Rajapaksa Government, primarily due to LTTE members and supporters being almost entirely Tamil, there were also likely instances of discrimination in the application of the emergency regulations and the Prevention of Terrorism Act (PTA) with LTTE support at times imputed on the basis of ethnicity. What I am prepared to accept is that, even though the boarding house was in Colombo, as a result of the boarding house having Tamil residents, the Sri Lankan authorities made routine checks and monitored the house.
The Authority concluded that paragraph of its reasoning as follows:
I do not accept that in 2012 the CID was looking for the applicant in particular and although he may have had a subjective fear that he could be abducted, I am not satisfied that there was targeted interest in the applicant by any Sri Lankan authorities including the CID.
In my view, the Authority weighed the evidence before it and explained its process of reasoning in a logical manner.
Particular (b) – no logical or probative basis to exclude a real chance that the Applicant may suffer persecution or significant harm, whether physical or mental, in detention
Otherwise by this ground the Applicant endeavoured to persuade the Court that the evidence of the Applicant’s claims to fear harm on return to Sri Lanka warranted a different outcome which would have been reached were the country information about the abuse of human rights, difficulty of getting accurate information, concerns of the UN Special Rapporteur and other sources of information, which ought to have been balanced in assessing the risk of detention and treatment of Tamils in detention. The Court was invited to reach this conclusion by reconsidering the material that was before the Authority.
As earlier referenced, the High Court of Australia clarified in Li that the task of the Court on judicial review is confined by the statute and it is not for this Court to engage with the merits of the application.
As reasoned in respect of ground 1, particulars (a) and (b), the Authority took into account the Applicant’s mental health issues in the context of the risk of detention and imprisonment on the materials before it. The Authority weighed those materials but did not find as the Applicant hoped. Again, the choice and assessment of the weight to attribute to the evidence of the Applicant’s claims including as to his mental health issues and the country information about the situation in Sri Lanka were matters for the Authority to consider in the conduct of its review.
The particulars to this fourth ground as pressed do not establish that the Tribunal was legally unreasonable or acted without logical or probative basis in its Reasons. This ground 4 does not succeed.
CONCLUSION
For the above reasons, the application in this matter must be dismissed. I will order costs fixed in the amount of $7,000.00 as sought.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 22 May 2025
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