ATJ18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 1329
•19 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ATJ18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1329
File number(s): SYG 456 of 2018 Judgment of: JUDGE DOUST Date of judgment: 19 August 2025 Catchwords: MIGRATION – judicial review – applicant citizen of Sri Lanka – application for protection visa – fear of persecution due to Tamil ethnicity – fear of Sri Lankan authorities due to perceived association with Liberation Tigers of Tamil Eelam – claims of monitoring and specific targeting by the Sri Lankan Criminal Investigation Department – late supply of information by the applicant in connection with review refused by the IAA – IAA found no exceptional circumstances justifying consideration of the new information - IAA found inconsistencies in the applicant’s account – IAA not satisfied the applicant had a well-founded fear of persecution – IAA deemed applicant not to have met complimentary protection criteria – no jurisdictional error on the part of the IAA – application dismissed Legislation: Australian Constitution para 75(v)
Migration Act 1958 (Cth) ss 5H, 5H(1), 5J(4), 36(2), 36(2A), 36(2)(a), 36(2)(aa), s 46A(2), 473CA, 473CB, 473DA, 473DB, 473DC, 473DD, 473DD(a), 473DD(b), 473DD(b)(i), 473DD(b)(ii), 473DE, 473DF, 476, 476(1)
Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37
DXG17 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 302 FCR 613; [2024] FCAFC 41
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Border Protection v CPA16 (2019) 268 FCR 379; [2019] FCAFC 40
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 117 Date of hearing: 30 January 2025 Solicitor for the Applicant: Mr S Hodges, Hodges Legal Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Mr K Fraser, Clayton Utz The Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 456 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ATJ18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE DOUST
DATE OF ORDER:
19 AUGUST 2025
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs.
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 DOUST:
INTRODUCTION
The applicant is a Sri Lankan citizen of Tamil ethnicity who arrived in Australia by boat in October 2012. On 17 March 2016, the applicant lodged an application for a Safe Haven Enterprise visa (SHEV or visa) with the (then) Department of Immigration and Border Protection (now Department of Home Affairs (the Department)).
The visa application was refused (the primary decision) by a delegate of the first respondent (now the Minister for Immigration and Citizenship (Minister)) (the delegate) on 13 April 2017.
On 18 April 2017, the primary decision was referred to the (then) Immigration Assessment Authority (the IAA) (now Administrative Review Tribunal) for review. On 30 January 2018, the IAA affirmed the primary decision of the delegate to refuse the visa (the IAA decision).
On 19 February 2018, the applicant commenced proceedings in this Court under s 476 of the Migration Act 1958 (Cth) (the Act) seeking judicial review of the IAA decision.
The questions that arise on the grounds in the amended application filed with this Court concern the approach taken by the IAA to dealing with additional information sought to be provided by the applicant on the review of the primary decision.
For the reasons that follow, the application must be dismissed.
EVIDENCE ON THE APPLICATION
At the hearing before this Court on 30 January 2025, the applicant was given leave to rely upon an amended application lodged with the Court on 10 January 2025.
The Court received into evidence, without objection, a court book which contained the IAA decision, the primary decision, and Departmental documents concerning the applicant’s visa application, from which the narrative below has been taken.
RELEVANT STATUTORY PROVISIONS
The criteria for the grant of the SHEV included that the applicant was a person in respect of whom Australia had protection obligations pursuant to s 36(2)(a) or s 36(2)(aa) of the Act. Those protection obligations were engaged, inter alia, if the applicant was a “refugee” (a term defined in s 5H of the Act) or if he satisfied the criteria for “complementary protection”. Given the grounds on which the applicant proceeds, it is not necessary to set out all of the relevant provisions.
Because of the circumstances of the applicant’s arrival into Australia, he was a “fast track applicant” and the primary decision was a “fast track decision” within the meaning of the Act as in effect at the time of the decision under review. As such, the review of the primary decision was governed by pt 7AA of the Act (as in effect prior to 14 October 2024). That part established the IAA, provided for automatic review of “fast track decisions” by the IAA, and regulated the manner in which the IAA performed its review function. A key feature of that regime was that the IAA review was presumptively to be conducted “on the papers”.
Critical among the provisions in pt 7AA pertaining to the present application are the following:
Division 2—Referral of fast track reviewable decisions to Immigration Assessment Authority
473CA Referral of fast track reviewable decisions
The Minister must refer a fast track reviewable decision to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made.
473CB Material to be provided to Immigration Assessment Authority
(1)The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i)sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b)material provided by the referred applicant to the person making the decision before the decision was made;
(c)any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
(d) the following details:
(i)the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;
(ii)the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;
…
Division 3—Conduct of review
Subdivision A—Natural justice requirements
473DA Exhaustive statement of natural justice hearing rule
(1)This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2)To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
Subdivision B—Review on the papers
473DB Immigration Assessment Authority to review decisions on the papers
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
(2)Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.
Note:Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).
Subdivision C—Additional information
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.
473DE Certain new information must be given to referred applicant
(1)The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a)give to the referred applicant particulars of any new information, but only if the new information:
(i)has been, or is to be, considered by the Authority under section 473DD; and
(ii)would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b)explain to the referred applicant why the new information is relevant to the review; and
(c)invite the referred applicant, orally or in writing, to give comments on the new information:
(i) in writing; or
(ii)at an interview, whether conducted in person, by telephone or in any other way.
(2)The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.
(3) Subsection (1) does not apply to new information that:
(a)is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or
(b) is non‑disclosable information; or
(c) is prescribed by regulation for the purposes of this paragraph.
Note:Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
473DF Invitation to give new information or comments in writing or at interview
(1) This section applies if a referred applicant is:
(a)invited under section 473DC to give new information in writing or at an interview; or
(b)invited under section 473DE to give comments on new information in writing or at an interview.
(2)The information or comments are to be given within a period that is prescribed by regulation and specified in the invitation.
(3)The Immigration Assessment Authority may determine the manner in which, and the place and time at which, an interview is to be conducted.
(4)If the referred applicant does not give the new information or comments in accordance with the invitation, the Immigration Assessment Authority may make a decision on the review:
(a)without taking any further action to get the information or the referred applicant’s comments on the information; or
(b)without taking any further action to allow or enable the referred applicant to take part in a further interview.
ISSUES FOR DETERMINATION
Pursuant to s 476(1) of the Act, the Court is conferred with the same original jurisdiction as that of the High Court under paragraph 75(v) of the Constitution, namely, jurisdiction where a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Both a writ of mandamus and an injunction were sought in the amended application.
The Court’s jurisdiction is exercisable to correct jurisdictional error.
Jurisdictional error describes a failure by a person or body that is given authority under a statute to exercise a power to comply with a condition attaching to the exercise of that power, where that failure has the result that the decision or exercise of power is regarded as lacking the authority of the statute. The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker may result where the decision-maker misunderstands the applicable law; asks the wrong question; exceeds the bounds of reasonableness; identifies a wrong issue; ignores relevant material; relies on irrelevant material; and in some cases, makes an erroneous finding or reaches a mistaken conclusion; or fails to observe some applicable requirement of procedural fairness: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [2]-[3]. In most cases an error will be jurisdictional in character only where it is material, in the sense that there is a realistic possibility that the decision could have been different if the error had not occurred: ibid [7].
The jurisdictional errors the applicant alleged affected the IAA’s decision were described in the grounds in the amended application, which were as follows:
Ground 2
That the process by which the Authority reached its decision was unreasonable.
PARTICULARS
(a)At all relevant times, the Applicant has not been accompanied or represented by a lawyer or agent;
(b) The delegate interviewed the Applicant on 27 March 2017;
(c)The Applicant presented documents to the delegate but it is unclear just what was presented because the delegate did [not] accept the documents;
(d) The delegate found the Applicant to be credible in relation to his major claims;
(e)The Applicant sent documents to the Authority. The Applicant included for the first time the claim that he and his sister, C, were combatant members of the LTTE.
(f)The Authority rejected the claims that the Applicant and C were fighters in the LTTE.
(g)The reasons for the rejection by the Authority of the Applicant's claims about he and C included reference to prior inconsistent statements, the failure to advance the claims when invited (in the past) to mention everything, lack of detail in particulars of the claims and both the delegate and the Authority accepted that the authorities perceived the family and C to be LTTE sympathisers.
(h)The above procedure led to the situation where the Applicant was not given the opportunity to address or explain inconsistencies.
(i)The Authority's decision to reject the Applicant's claim that he and C were fighting members of the LTTE was unreasonable for this reason.
Ground 3
The Authority erred in the manner in which it considered new information pursuant to s473DD of the Act.
PARTICULARS
(a)At all relevant times, the Applicant has not been accompanied or represented by a lawyer or agent;
(b)The Applicant presented material to the delegate on 17 March 2017. That material was not retained on the respondent's file;
(c) The Applicant then presented material to the Authority.
(d)Some of the new material presented to the Authority was not new. Some of the material may have been presented to the delegate but rejected. Significantly, the material presented to the Authority included for the first time a claim by the Applicant that he and C were fighting members of the LTTE.
(e)The reasons the Authority rejected the new claim involved a misunderstanding of the task required pursuant to s473DD. The Authority did not proceed correctly according to the provisions of s473DD and the Authority took into account irrelevant considerations in considering the provisions of s473DD.
Those two grounds are considered below, following a recitation of the relevant facts.
BACKGROUND AND RELEVANT FACTS
Arrival in Australia
The applicant was born in 1985. He arrived in Australia by boat in October 2012.
The applicant claimed at his ‘Irregular Maritime Arrival Entry Interview’ (the entry interview) in December 2012 that he had fled Sri Lanka due to the Criminal Investigation Department (CID) of the Sri Lankan Police causing trouble for him, which he attributed to the CID’s suspicion that the family was linked with the Liberation Tigers of Tamil Eelam (LTTE). The applicant alleged the CID suspected that his sister (“C”), who had been killed in a bomb blast, had died fighting for the LTTE and also suspected his family were LTTE supporters as they had relocated within Sri Lanka with the assistance of the United Nations Human Rights Commissioner for Refugees to an LTTE controlled area. The applicant also claimed that the CID had, in 2006, shot and killed his other sister (‘T’) and had been present at her funeral.
The applicant stated that the CID came to his house in September 2012 and asked him to go to a different army camp. The applicant did not wish to go, due to his fears of what had happened to his sister T and a cousin whom he claimed was also killed by the CID and avoided going to the camp by running away.
Invitation to apply for Save Haven Enterprise Visa (SHEV)
On 23 December 2015, following changes to the Act concerning persons who arrived in Australia by boat, the Department wrote the applicant advising that pursuant to s 46A(2) of the Act, the bar to his making a visa application was lifted and invited him to make an application for a SHEV or a temporary protection visa.
The applicant made an application for a SHEV which was marked as received by the Department on 17 March 2016 (SHEV application). The application was supported by a statutory declaration. In it, the applicant stated that C had been killed, accidentally, by an artillery attack on 5 January 2000 while she was studying in a LTTE controlled area. The applicant also stated that T had been raped, shot, and killed by the CID in April 2006. He claimed that the authorities were suspicious, because of C’s death, that the family were supporters of the LTTE.
The Department wrote to the applicant on 29 April 2016 and informed him that his SHEV application had been received and assessed as valid.
On 10 March 2017, the Department wrote requesting the applicant attend an interview on 27 March 2017 (with a Tamil interpreter present) to discuss his SHEV application and his claims for protection. The letter directed the applicant to carefully read an attached document entitled “Important Information About Your Protection Visa Interview” before his interview. Attached with that document was a page with the heading (in English) “Important Information About Your Protection Visa Interview”. Below it was a list of different languages (including Tamil), and beside each language name a line of script apparently in that language, along with a link to a page at I infer that the line of script in each language was a translation of the words “Important Information About Your Protection Visa Interview”, or something to similar effect, along with a link to a translation into that language of the English language document of seven pages which follows that page.
The English language document contained the following passages:
The purpose of the interview
The interview is an opportunity for you to provide the Department with all the information you have to support your claims for protection and to clarify the written claims that you made in your Protection visa application.
The interview is also an opportunity for the interviewing officer to ask any questions they may have about your claims, your identity, or documents you have provided.
It is important that you present all your claims for protection during your Protection visa interview. If a refusal decision is made on your visa application and your application is reviewed, you may not be able to raise new claims to be considered at that review.
…
Your responsibility in relation to your protection claims
It is extremely important that you tell the truth throughout the Protection visa process and provide the Department complete, personal and accurate protection claims, as early as possible, including during the interview. If you do not give the Department all of your protection claims, and any additional relevant information you may have, and your application is refused by the Department, you might not have another chance to provide these claims for the purpose of supporting your Protection visa application.
Prior to the interview, the applicant provided the Department with various documents relating to the respective deaths of his sisters T and C, namely:
(1)a translated extract from the Register of Deaths which respectively listed T’s date and place of death as “Twenty-seventh of April 2006…at Home” and cause of death as “Due to gun shot. Homicide with Rape”;
(2)a document entitled ‘Inquirer’s Certificate of Death [Sections 39(1) and 41(1)(e)]’ apparently relating to T’s death and completed by a magistrate;
(3)a signed letter from the applicant’s mother which stated, amongst other things:
(a)“…my 19 years old fourth daughter [C] was killed by shell attack on 01.05.2000, due to war”;
(b)“…my 27 years 3rd daughter [T] was forcibly raped and murdered”; and
(c)“After these incidents, some persons who had identified them selves as Army Intelligence use to search for my son (the applicant) and they visit our house very oftenly”.
The letter requested that the recipient, “The Grama Niladhari” confirm the stated facts. Below the signature was a typewritten statement certifying that the details mentioned were correct and true to the best of the recipient’s knowledge, below which was a signature and the date 14/07/2016. Below the signature and date was a stamp with a name above the words Grama Niladhari, and an address. The effect of the signature and stamp is similar to the attestation or witnessing of a document by a justice of the peace or notary (the certified letter); and
(4)A translated document titled ‘[T] was shot and killed after rape and molester. Findings in Preliminary Medical Examination – Order to arrest the accused’. The words “Our correspondent” appear below the heading. The document appears to be a translation of a newspaper report.
By a letter dated 13 April 2017, the delegate notified the applicant of its decision to refuse his protection visa application on the grounds that he did not satisfy s 36(2) of the Act and attached a copy of the decision record.
The Delegate’s Decision
The delegate commenced his reasons by accepting the applicant’s claimed identity, as a Sri Lankan man of Tamil ethnicity, on the basis of the documentary evidence before him and the applicant’s consistent narrative as to that identity during the interviews conducted.
The delegate then proceeded to list the applicant’s claims for protection as follows (reproduced as set out in the original):
•A sister was killed by an artillery attack on 5 January 2000 while studying in the Liberation Tigers of Tamil Eelam (LTTE) controlled area at the time and so was killed accidentally.
•Another sister was raped, shot and killed by the Criminal Investigation Department {CID} on 27 April 2006.
•The applicant was forced to leave Sri Lanka because he feared that my life was in danger and that he risked arbitrary deprivation of life, death, torture, and cruel or inhuman treatment. This is because the authorities in Sri Lanka believe that his whole family are supporters of the LTTE.
•The CID would also regularly visit and harass his family, saying that his family is the hero of the LTTE. The CID began to visit his home every one and a half months. They would tell them that they were supporters of the LTTE and the "hero" family.
•If he is forced to return Sri Lanka he fears that he will be subjected to harm including arbitrary detention and death.
•They will inflict this harm on him because they have already been coming to his home and looking for him since he left because they believe he is a member of the LTTE.
The delegate stated, based on a review of the audio recording of an interview between the applicant and another officer of the Department, that the applicant presented as a credible witness who appeared to be recalling events from his experience. The delegate accepted the applicant’s major claims and statements, namely:
(1)the applicant had a sister who was killed by an artillery attack on 5 January 2000 while studying in the LTTE controlled area and was killed accidentally; and
(2)an arm of the government was responsible for the death of sister T who was raped, shot, and killed on 27 April 2006.
The delegate accepted that the applicant’s family may have been regularly visited by the CID as part of routine checks of people in the area, including of those who had spent time in areas under LTTE control.
The delegate did not accept the applicant’s claims to have been specifically targeted by the CID, or any other arm of the government, due to a suspicion that he or his family were LTTE members or supporters.
The delegate found the fact that the applicant had been released back to his village after having spent three years in an army-controlled displacement centre from 2006 to 2009, indicated that he was not of specific interest to authorities.
Addressing the applicant’s claim that the CID had visited the applicant’s home semi-regularly from 2011 following C’s death, the delegate noted the applicant’s evidence that despite the claimed frequency of the visits, the CID had never found the applicant at home as he was working at a farm a couple of kilometres away. The delegate considered that if the applicant was indeed of specific interest to the authorities, they would have made greater efforts to locate him.
For the same reason, the delegate rejected the applicant’s claims that he was of specific interest to the authorities because they wanted to ensure he did not pursue a case against the perpetrators responsible for his sister T’s death. The delegate reasoned that if the authorities had an interest in the applicant they would have gone to greater lengths to find him. The delegate noted that the applicant had not claimed that his other family members were targeted in relation to the issue.
The delegate went on to consider whether the applicant’s Tamil ethnicity would of itself lead to an imputed association with the LTTE.
The delegate concluded that any such risk was remote, noting that the applicant was not politically active and did not have a political profile of any kind in Sri Lanka.
In reaching this conclusion, the delegate referred to a 2017 Department of Foreign Affairs and Trade (DFAT) country report, which recorded that individuals with the highest risk of arrest, detention, and prosecution by Sri Lankan authorities were former LTTE leaders or high-profile members. The delegate also referred to a UK Home Office report on Tamil separatism dated 19 May 2016 to similar effect. The delegate also noted other evidence about a relaxation of the monitoring and harassment of Tamils and indications of greater Tamil prominence in civil society.
The delegate then considered whether the applicant would be targeted as a result of being a Tamil who had previously resided in an area controlled by the LTTE.
The delegate noted evidence of an improvement in the economic and security situation for Tamils in Sri Lanka, and efforts towards reconciliation since the January 2015 election, including recruitment of Tamils into the military and police.
Whilst acknowledging that there existed reports of continued human rights violations in Sri Lanka, the delegate concluded that an analysis of reports from various international sources did not support a conclusion that Tamils, including young men from former LTTE-controlled areas, were being systematically targeted and subjected to serious harm on the basis of race and/or area of origin.
The delegate found that given the improved situation in the north of Sri Lanka and the delegate’s conclusion that the applicant was not of specific interest to the authorities, the chance of him facing persecution was remote. The delegate also concluded that the risks of discrimination or harassment the applicant faced was not of a level amounting to serious harm.
The delegate also formed the view that the applicant, having no prior involvement with the LTTE and being of no interest to Sri Lankan authorities when departing the country, did not have a well-founded fear of persecution by reason of being a Tamil asylum seeker who departed Sri Lanka illegally – the usual penalty for such conduct was a fine, and the laws in respect of such offences were laws of general application.
The IAA Review
On 19 April 2017, the IAA wrote to the applicant to notify him that his SHEV application had been referred to the IAA for review.
The letter stated, inter alia:
The Department of Immigration and Border Protection (the department) has provided us with all documents they consider relevant to your case. This includes any material that you provided to the departmental officer before they decided to refuse you a protection visa.
(Emphasis added)
The letter attached a factsheet and Practice Direction containing information about the review process. The factsheet stated (relevantly) as follows:
What information does the IAA have about my case?
The department will provide the IAA with all documents the department considers relevant to your case. This includes any documents you provided to the department in connection with the protection visa application. Generally, we will conduct a review of the department’s decision solely on the basis of the information provided by the department.
Can I provide new information to the IAA?
We can only consider new information if there are exceptional circumstances to justify considering the new information. New information is information that is relevant and was not before the department when it made its decision.
If there is new information you want us to consider, you must also provide an explanation why the information:
•could not have been provided to the department before it made the decision to refuse you a protection visa, or
•is credible personal information that, had it been known to the department, may have affected the department’s decision.
…
(Emphasis added)
On 10 May 2017, the applicant lodged with the IAA a document titled ‘Submissions’ which attached several additional documents and relevantly stated:
I have previously not provided some information about myself and my family and wish to provide that information now.
I did not provide that information as I feared that I will be held in detention for a long time as it happened with some other LTTE members.
…
My sister [C] was a fighter in the LTTE. She died in fighting. She was martyred by the LTTE. Her LTTE name I [omitted]. She was in [omitted] Force. Her details are contained in a website dedicated to LTTE martyrs.
After her death I joined the LTTE and fought with them. I fought against the Sri Lankan government.
…
I was in the displacement camp but I did not confess that I was in the LTTE.
…
My LTTE name is [omitted]. I have received AK47 rifle training. I was in [omitted] Force and then in [omitted] Force. I also had a micron 12 gun. I was in the LTTE movement for a period of 9 years.
…
If you need me to attend an interview I am prepared to attend one.
(Errors in the original.)
The submission attached:
(1)a page of handwriting, which I infer was in Tamil script;
(2)the translated extract from the Register of Deaths (referred to above at [25]);
(3)an English translation of a death notice headed “Condolence with Tears” concerning the death of the applicant’s sister “T” in 2006;
(4)a copy of the translated document titled ‘[T] was shot and killed after rape and molester. Findings in Preliminary Medical Examination – Order to arrest the accused’ (referred to above at [25]);
(5)a document in Tamil which appears to be the original version in Tamil of the “Condolence with Tears” document;
(6)a page extracted from a Tamil language newspaper or similar dated 29.04.2006;
(7)the Inquirers Certificate of Death (referred to above at [25]);
(8)the original extract from the Register of Deaths (referred to above at [25]) (containing English, Tamil and another script, presumably Sinhalese);
(9)the certified letter (referred to above at [25]);
(10)the ‘Post-Mortem Report’ concerning “T”; and
(11)an extract from the web page “veeravengaikal.com”, followed by a page headed “Translated from Tamil” which sets out details of the applicant’s sister C’s rank, “movement name” (being the LTTE name the applicant claimed his sister C was known by) and the date and occasion of her ‘heroic death’.
The IAA Decision
On 30 January 2018, the IAA reviewer notified the applicant that it had affirmed the delegate’s decision not to grant the applicant a protection visa.
Annexed to the refusal notification was a copy of the decision record which confirmed that the application had been refused on the grounds that the applicant did not meet the definition of refugee in s 5H(1) of the Act (and therefore did not meet s 36(2)(a) of the Act), nor satisfy the complementary protection assessments respectively under ss 36(2A) and 36(2)(aa) of the Act.
The IAA stated (at [4]) that it had regard to the material given by the Secretary under s 473CB of the Act. It appeared that included the audio recording of the interview with the applicant, and the IAA reviewer listened to that recording (at [22]).
The IAA reviewer dealt with the question of the information before it, and the new information that had been provided by the application at [5] – [14] of the decision record.
The IAA reviewer noted (at [6]) that some of the documents, being the register and certificate of death for T; the certified letter written by his mother; and the translation of the newspaper article relating to death of T (listed at [25] of these reasons) had been provided to the case officer who had conducted the interview with the applicant.
However, the IAA reviewer noted (at [7]) that there were additional documents that the applicant had attempted to submit to the case officer during the interview saying:
7.The applicant provided to the IAA what looks to be a funeral or memorial notice in respect of T, with translation, and a post-mortem report in respect of T. During the protection visa interview the applicant submitted documents said to relate to the killing of T. At the conclusion of the interview he attempted to submit further documents relating to that matter, but the officer indicated to the applicant that he accepted the claim and did not see any requirement to put those documents on file.
…
The IAA reviewer then went on (at [7] and [8]) as follows:
7.… I cannot be satisfied that the new information the applicant now submits relating to T was not part of those documents he attempted to submit to the delegate. I am satisfied that the applicant could not have provided the new information to the delegate prior to the decision being made, having effectively been prevented from doing so. However, while the new information, particularly the post mortem report, corroborates the applicant’s claims regarding T’s rape and murder and provides further detail into the manner of her death, it does not significantly add to the information already before me. The delegate accepted that T was raped and murdered, and I also accept this claim on the material given by the Secretary. I accept the new information is credible but am not satisfied in this case that the corroborative nature of the material, or the fact that the applicant was unable to provide it earlier, are exceptional circumstances that would justify consideration of this new information, or that any other such exceptional circumstances exist.
8.The material also includes a Tamil language newspaper article dated 29 April 2006. It is not apparent whether or not this is the original-language document of the translated article submitted by the applicant to the delegate. Without further information regarding the content of this document I cannot be satisfied of the matters in s.473DD.
The IAA reviewer dealt, at [9] and following, with the new claims the applicant had made about himself and his sister C having been LTTE fighters. The IAA set out the substance of the claims (at [9]), and then dealt (at [10]) with the applicant’s explanation why he had not provided the information earlier, as follows:
9.…The applicant claims that he did not provide the information earlier because he feared he would be held in detention for a long time as had happened with other LTTE members. I do not accept that the applicant feared he would be held in detention if he disclosed that his deceased sister was in the LTTE. As for the applicant’s own claimed involvement, he has not explained why, being previously afraid to disclose the information, he was able to disclose it to the IAA less than two months after attending the protection visa interview.
…
It is noteworthy that whilst the IAA reviewer expressly rejected the notion that the applicant feared being held in detention longer if he disclosed C’s LTTE involvement, the reviewer did not reject the notion that the applicant would have had a genuine basis to fear longer detention if he disclosed his own involvement in the LTTE. The reviewer’s focus upon the applicant’s sister in that finding reads as an implicit acceptance that the applicant’s stated fear of longer detention was a credible one. The reviewer then notes the absence of an explanation as to why the applicant was willing to disclose his LTTE membership to the IAA when he had not been willing to do so two months previously at the protection visa interview. That question had not been posed to the applicant.
The IAA reviewer concluded (at [11]) that the applicant was on notice that he may not have another opportunity to provide information if his application was rejected by the delegate at the first stage. The interviewer told the applicant it was his responsibility to raise all claims for protection and provide evidence in support, and that he may not get a further chance to provide information in support of his claims. At the interview, the applicant had confirmed that he had read the information sheet that advised that he may not have a further chance to provide evidence in support of his claims and confirmed at the end of the interview that he had provided all information relating to his application. The IAA reviewer was satisfied the applicant had ample opportunity to make his claims at the first stage.
The IAA reviewer also observed (at [12]) that when the applicant had been asked at the interview how he had avoided being forcibly recruited, the applicant had explained that because he had been responsible for the care of his disabled sister, and because it was said they were an LTTE family, they did not get involved. The IAA reviewer also noted that the applicant had given specific evidence about being a rice farmer, which evidence contradicted the claim of LTTE involvement over 9 years. The IAA reviewer was not satisfied that the applicant’s claim to have been in the LTTE was credible.
So far as the applicant had raised a new claim about his sister C, the IAA reviewer (at [13]) was not satisfied that new information may have affected consideration of the applicant’s claims. The applicant had claimed the authorities had an interest in his family because they believed C was an LTTE member. The delegate had rejected the claim about being of interest to the authorities based on their lack of action against him in the years following the war, not based on any finding about C.
The IAA reviewer (at [14]) concluded that she was not satisfied that the applicant could not have provided the new information prior to the delegate’s decision, that it was credible personal information that, if known, may have affected consideration of the claims or that there were exceptional circumstances to justify its consideration. The IAA reviewer determined not to invite the applicant to attend an interview.
The IAA reviewer then proceeded, after setting out the questions that arose for consideration, to set out her reasons for affirming the delegate’s decision.
She accepted the applicant’s claims about his identity and nationality (at [18]).
She accepted that the authorities were harassing the applicant’s family prior to 2006, because C was perceived to be an LTTE member (at [19]).
She also accepted that the applicant’s sister T was raped and killed by the Sri Lankan authorities in 2006, that there was an ongoing inquiry into T’s death and that following the family’s return to their village in 2009, the authorities had harassed them with frequent visits, ID checks and comments about them being LTTE supporters. However, rejected the applicant’s claims that harassment worsened in 2011 and 2012, and that the authorities were searching for him or suspected him of having involvement with the LTTE (at [20] to [23]).
That rejection was premised on, first (at [24]), the release of the applicant’s family from a detention camp following the war after 6 months. Based on country information, the IAA reviewer considered that the authorities would not have released the applicant, a male of fighting age from what was thought to be a “martyr family”, if he was suspected of LTTE involvement. His release suggested he had been assessed and found to have no involvement.
Next (at [25]), the IAA reviewer observed the applicant’s account about the reason for the authorities’ interest shifted focus over time. The applicant’s failure to earlier identify the court case as the reason for the CID’s interest suggested that the harassment was not as significant as he claimed.
The IAA reviewer also regarded it as implausible that the applicant had managed to evade the CID by being at the farm, and not the family’s house when the CID came, reasoning that if the CID had come to his village to try to find him, they would do more than just make inquiries about him. The IAA reviewer also characterised the applicant’s evidence of his evasion of the CID as appearing to shift in response to the delegate’s questions.
The IAA reviewer observed other inconsistencies in the applicant’s account at [28] to [30], including his failure to later mention the claim he made in his arrival interview about the CID coming to his house and asking him to go to an army camp in 2012. The IAA reviewer also observed that the applicant had initially claimed the CID attended his home with a computer showing his picture to his mother after his departure, whilst in his statutory declaration, an episode like that had occurred prior to his departure and had triggered his departure from Sri Lanka.
The IAA reviewer was not satisfied that the inconsistencies she had identified were accounted for by the applicant’s lack of representation, or the fact his statutory declaration was only a summary, or the fact that his arrival interview was brief.
The IAA reviewer did not accept (at [31]) the authorities had inquired about or searched for the applicant prior to his departure from Sri Lanka in 2012 or that he was a person of any interest to them at that time. Nor did the IAA reviewer accept that they came to his home after he left and made inquiries about him. The IAA reviewer was not satisfied that the authorities believed the applicant to have had any involvement with the LTTE or any connection with that group beyond his relationship with C.
The IAA reviewer found the prospect of the applicant’s being harmed in connection with T’s death, or the case concerning it, to be remote.
The IAA reviewer then went on to consider (at [33]) whether there was a real chance of the applicant being imputed with support for the LTTE, given his profile and his circumstances as a young Tamil male who resided in a formerly LTTE controlled area, a sister believed to have been an LTTE martyr, a cousin who had been abducted, and given his illegal departure from Sri Lanka and claim for asylum.
At [34] to [37], the IAA reviewer summarised country information showing changes in circumstances in Sri Lanka since the new President and new government in 2015, including a UK Home Office report about a shift in the authorities’ focus to Tamil separatist activists living overseas.
The IAA reviewer concluded (at [37]):
37.The information before me does not suggest that Tamils, including young men such as the applicant from areas formerly controlled by the LTTE, are routinely imputed with support for the LTTE or otherwise harmed…
At [38], the IAA reviewer concluded that the applicant had not faced serious harm due to C’s suspected LTTE involvement, or the court case concerning T prior to his departure, and was not satisfied that in future he would be subject to any more than occasional monitoring or harassment.
Whilst accepting that the applicant would be processed and investigated because of his illegal departure, the IAA reviewer summarised country evidence indicating such returnees usually incur only a fine, rather than a custodial sentence, finding at [44] that there was not a real chance the applicant would suffer anything more than a brief period of detention (which may be in poor conditions) or a fine. The IAA reviewer did not consider there was a real chance of mistreatment and was not satisfied that the treatment the applicant was likely to experience amounted to serious harm. Such treatment would, in any event, be a consequence of the non-discriminatory application of Sri Lankan law.
The IAA reviewer acknowledged reports of some returnees suffering detention and torture, but noted that many of those instances concern persons who had involvement in the LTTE, and the applicant was not suspected of such involvement.
At [43], the IAA reviewer said:
43.I have found above that the applicant is not a person of any interest to the Sri Lankan authorities and I am not satisfied that he would be imputed to have an anti-government or pro-LTTE/separatist political opinion by reason of his having left Sri Lanka to claim asylum, or that his claim for asylum or stay in Australia would otherwise lead to any adverse interest in him…
At [47], the IAA reviewer considered the applicant’s claims cumulatively, but expressed satisfaction that there was not a real chance of the applicant being harmed in any way beyond what had been accepted. The IAA reviewer was not satisfied that low-level discrimination, infrequent monitoring and harassment, a brief period in detention and a fine amounted to persecution within the meaning of s 5J(4) of the Act and concluded the applicant did not have a well-founded fear of being persecuted. Accordingly, at [48], the IAA reviewer concluded that the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and did not meet s 36(2)(a) of the Act.
The IAA reviewer went on to consider the applicant’s claims against the complementary protection criteria, concluding, at [53]:
53.…I am not satisfied that there is a real risk of the applicant facing discrimination, monitoring and/or harassment to a level that would amount to cruel or inhuman treatment or punishment, degrading treatment or punishment or any other form of significant harm, whether individually or cumulatively.
The IAA reviewer was satisfied that any detention of the applicant upon his return to Sri Lanka would be pursuant to laws established to ensure orderly departure, for the purpose of establishing his identity and obtaining a security clearance and waiting for bail to be processed. To the extent the applicant may be held in crowded and unsanitary conditions, that was not a consequence of Sri Lankan officials intending to cause pain or suffering or extreme humiliation, and was not torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The IAA reviewer was not satisfied that cumulatively, such treatment as the applicant would experience amounted to “significant harm” (within the meaning of s 36(2A) of the Act), and concluded there were not reasonable grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the applicant would suffer significant harm. Accordingly, the IAA reviewer found that applicant did not meet s 36(2)(aa) of the Act.
The IAA affirmed the delegate’s decision.
CONSIDERATION
Ground 2
That the process by which the Authority reached its decision was unreasonable.
The Parties’ Submissions
The applicant alleged that the process by which the IAA reached its decision was unreasonable.
In the amended application, this ground focused on the rejection of the applicant’s new claims that he and his sister C were LTTE fighters, and the fact that the applicant had not been afforded a chance, by way of an interview, to address the inconsistencies, and the lack of details upon which the IAA had relied to reject those claims.
In his written submissions, the applicant asserted that the IAA should have taken steps to fill the “information gap” that existed and given the applicant an opportunity to address the inconsistencies and to provide details of his fears of disclosing his membership of the LTTE. The applicant asserted that the IAA was under an obligation to act reasonably in the performance of its statutory duty, relying on the decision in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (ABT).
The first respondent submitted that under pt 7AA of the Act there is a general requirement that the IAA conduct its review “on the papers” without accepting or requesting new information from the applicant and without conducting any interview: DXG17 v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 302 FCR 613; [2024] FCAFC 41 (DXG) at [51]. Even where credibility is in issue regarding an applicant’s evidence, it is ordinarily open to the IAA to form its own assessment of such matters having regard to the review material, including the interview record: ABT at [23].
Resolution
The IAA had an obligation to exercise its discretion under s 473DC of the Act in a legally reasonable manner, with the consequence that an unreasonable failure to exercise that power could render invalid the purported performance by the IAA of its review function: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [21], per Gageler, Keane and Nettle JJ. The implied condition that the IAA’s statutory power be exercised reasonably may in some circumstances compel the IAA to exercise its powers under s 473DC to go and get further information by inviting an applicant to an interview. In ABT, the majority (Kiefel CJ, Bell, Gageler and Keane JJ) said, at [3]-[4]:
3.The duty of the Authority to review a referred decision is imposed on the implied condition that the duty must be performed within the bounds of reasonableness, and the powers of the Authority to get and consider new information are likewise conferred on the implied condition that those powers must be considered and where appropriate exercised within the bounds of reasonableness.
4.The question of principle in this appeal is whether compliance with the reasonableness condition can compel the Authority to exercise its powers to get and consider new information by inviting a referred applicant to an interview in order to assess and consider his or her demeanour in the conduct of a review. The answer is that it can, and that in this case it did.
The exercise of the IAA’s statutory function in a legally reasonable manner required that the decision have an “evident and intelligible justification” (to adopt the language of Hayne, Kiefel (as her Honour was then), and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76]) and that the decision be arrived at from an intelligible decision-making process: ABT at [20].
Resolving the question whether the IAA has complied with the implied condition of reasonableness requires an examination of the decision-making pathways that were reasonably open to it in the conduct of its review: ABT at [21]. That is because, as the majority observed at [22] of ABT, an “information gap” with which the IAA is confronted may not necessarily result in the IAA being disadvantaged compared with the delegate. The presentation of the applicant in an interview may not have a significant bearing on the assessment of his credibility: ABT at [22]. Further, the country information and other review material may mean that the applicant’s credibility does not have a significant bearing on the outcome: ibid. In any event, it will ordinarily be open to the IAA to form its own assessment of the applicant’s credibility: ABT at [23], and the IAA is not required to interview an applicant merely because credibility is in issue: ABT at [24].
The circumstances described above obtain in the present matter. The assessment made by the IAA reviewer of the credibility of the applicant’s claims that he and C were LTTE fighters was not conditioned upon the IAA reviewer’s assessment of the applicant’s presentation at interview; it was conditioned upon the substance of his responses. So far as the applicant claimed to have been an LTTE fighter himself, the rejection of that claim by the IAA reviewer was substantially conditioned upon the inconsistency of that claim with the applicant’s responses in his interview: his express denial of having been an LTTE fighter and supporter, his specific explanation of how he had managed to avoid being forcibly recruited into the LTTE and his description of having been a rice farmer after his family moved to Kilinochchi in 2006. In its consideration of those matters, the IAA took no different view of the applicant’s evidence in the interview below than did the delegate.
So far as the applicant claimed his sister C had been an LTTE fighter, the IAA was not persuaded that the applicant did not provide the information earlier because he feared he would be held in detention if he disclosed C’s status. The IAA noted the applicant denied that C was a member of the LTTE, but concluded that even if she had been, that did not change the substance of the claim, as the applicant’s claim had been advanced before the delegate on the basis that the Sri Lankan authorities believed C was in the LTTE and imputed the family with LTTE sympathies for that reason.
Perhaps more importantly, even if the IAA had accepted that the applicant and C were LTTE fighters, its findings about the changed conditions in Sri Lanka were such that those later claims would not have been found to have given rise to a real chance of persecution. At [35], the IAA said:
35.While I accept that instances of human rights abuses do continue, including against Tamils perceived to support the LTTE, the balance of information before me indicates that the focus of the Sri Lankan government has changed. The UK Home Office assesses that the current focus of the Sri Lankan authorities is on identifying Tamil activists in the diaspora working towards separatism and preventing the resurgence of the LTTE or similar separatist organisations and that generally, past connection to the LTTE does not of itself warrant protection unless the person is perceived to have had a significant role in that organisation, or if they are perceived to be active in post-conflict Tamil separatism, which I am not satisfied is the case for the applicant. DFAT refers to unverified reports of relatives being arrested and detained because of family connections, and assesses that relatives may be subject to some monitoring, but this applies to relatives of high-profile former members who remain wanted by the authorities, which is not the case for the applicant’s sister C.
(Emphasis added)
The applicant submitted, based on some of the delegate’s reasons, that the claim that the applicant and C were combatants gave rise to a greater risk. He pointed to the following passage in the delegate’s reasons:
…Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country. According to expert testimony provided to a hearing of the UK’s Upper Tribunal on Immigration and Asylum, Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases.
The applicant also relied upon the following passage in the delegate’s reasons in support of this ground:
In 2017 DFAT reported that Sri Lankan authorities remain sensitive to potential re-emergence of the LTTE; those at highest risk of arrest, detention or prosecution are the LTTE’s former leadership. Although many high-profile members may have already been released following their detention and prosecution, any other high-profile members who return to Sri Lanka would be likely to be arrested, detained and prosecuted. DFAT assesses that the great majority of low-profile former members have already been released following their detention and rehabilitation. Those undergoing later rehabilitation may be monitored but generally are not prosecuted, after their release.
Given it is the IAA’s exercise of its review powers that is the subject of the present application, and the IAA made its own findings about country conditions, the observations of the delegate have limited significance. In any event, the passage above provides little, if any support for the conclusion that low-profile former LTTE members were at a real risk of persecution. That information indicated that the risk attached to former leadership or high profile members. The applicant had not made any claim to have held a leadership or other high profile role.
The IAA operated with an “information gap” of sorts. At [10] of its reasons, the IAA noted the absence of an explanation why the applicant had felt constrained from disclosing his LTTE involvement at the interview but was able to disclose it some two months after that interview. That was an explanation that may have been sought at interview. However, the question appeared to have been posed by the IAA reviewer rhetorically. That “information gap” did not leave the IAA reviewer disadvantaged relative to the delegate, as had been the case in ABT. The delegate had not interviewed the applicant in relation to his claims that C and he were LTTE fighters as the applicant had not advanced those claims at that stage. Given the view the IAA reached about the absence of risk connected with mere former LTTE membership, or to being the relative of an LTTE member, and the findings of inconsistency between the applicant’s interview and later claims, the question why the applicant felt able to disclose his and C’s membership at the IAA stage was of limited significance in the determination of the application for review. It was not so significant as to render the IAA’s decision not to seek further information from the applicant at an interview legally unreasonable.
The reviewer’s decision not to invite the applicant to attend an interview appears at [14] of the IAA decision. It follows the reviewer’s conclusion that she was not satisfied that the further information the applicant had provided could not have been provided prior to the delegate’s decision, nor that it was credible personal information that if known may have affected consideration of the claims, nor that there were exceptional circumstances that justified its consideration. In effect, the reviewer concluded that s 473DD would not have permitted the consideration of the new information provided by the applicant in any event.
The decision not to interview the applicant had an evident and intelligible justification and followed an intelligible decision-making process. The decision to decline to invite the applicant to attend an interview was not legally unreasonable.
Accordingly, I am not satisfied that the IAA erred in the manner alleged in Ground 2.
Ground 3
The Authority erred in the manner in which it considered new information pursuant to s 473DD of the Act.
The applicant submitted that the IAA took an impermissibly narrow approach to the application of s 473DD of the Act, by giving overriding importance to the applicant’s failure to produce the information earlier. That factor may be relevant in the consideration of s 473DD(b)(i) of the Act (whether the information was not, and could not have been, provided to the Minister…), but is not directly a consideration in s 473DD(b)(ii) of the Act.
The applicant submitted that late supply of information cannot be the only reason for rejecting the credibility of information, and that the IAA had not considered the essence of the new material.
The applicant relied on the decision in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 (AUS17).
In AUS17, at [7] to [13], the majority of the High Court (Keifel CJ, Gageler, Keane and Gordon JJ) discussed the operation of s 473DD of the Act, observing the interrelationship between ss 473DB and 473DD of the Act, and the duty that is imposed upon the IAA to assess new information against the criteria in s 473DD of the Act. The majority observed (at [7]) that all new information must meet the criterion in s 473DD(a) of the Act, and that there are “exceptional circumstances” that justify the consideration of the new information.
In addition to that “exceptional circumstances” criterion, one of the following must be satisfied:
(a)s 473DD(b)(i) – the information “was not, and could not have been, provided to the Minister” before the first instance decision; or
(b)s 473DD(b)(ii) – the information is credible personal information, was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
The majority (in AUS17) concluded (at [11]) that logic and policy demand that the assessment against the criteria in s 473DD(b) of the Act must occur before the assessment against s 473DD(a) of the Act. If neither the criteria in (b) are met, there is no occasion to consider the exceptional circumstances criteria. If both the criteria in (b) are met, that fact may inform the question whether there are exceptional circumstances. The IAA will not perform the procedural duty imposed upon it, if it proceeds immediately to determine that there are not exceptional circumstances that justify consideration of the new information without first undertaking the assessment against the criteria in s 473DD(b) of the Act.
The IAA did not err in the manner alleged.
At [7] to [14] of its reasons, the IAA deals with several different categories of new information which had been submitted by the applicant on 10 May 2017.
The first category of information is discussed at [7], being the funeral or memorial notice in respect of the applicant’s sister T, and the post-mortem report. The IAA was not sure whether the applicant had sought to tender the documents at his protection visa interview, noting the applicant had sought to provide further documents regarding T, and the officer had told the applicant there was no need to provide them as that claim was accepted.
Whilst the Secretary of the Department was obliged by s 473CB of the Act to provide the Authority with all of the material that had been provided by the applicant at first instance, and that did not occur in the present matter, such failure will only of itself constitute jurisdictional error where the review material that was not provided could have resulted in the making of a different decision: Minister for Immigration and Border Protection v CPA16 (2019) 268 FCR 379; [2019] FCAFC 40 at [32]. In this matter the applicant did not allege that there was jurisdictional error arising from such failure. Nor did the applicant tender any evidence identifying or annexing the material rejected by the interviewing officer. In those circumstances, I infer that the documents the applicant sought to provide to the interviewing officer were the documents concerning T which are referred to at [7] of the IAA’s reasons. The IAA reviewer concluded that the information did not add to the information before her, as she had accepted the applicant’s claims regarding the fact and manner of T’s death. Given that acceptance, there is no basis to think that the receipt of the material could, as a realistic possibility, have resulted in the making of a different decision. Accordingly, I am not satisfied that there was any jurisdictional error arising in respect of the refusal to receive the documents concerning T referred to at [107].
At [8], the IAA considered a Tamil language newspaper article dated 29 April 2006. The IAA was not able to consider that further without having a translation of the article. No submission was directed to demonstrating any error by the IAA in so proceeding.
At [9] and following, the IAA considered the claims that the applicant and C were LTTE members. At [12] the IAA expressed the view that the applicant’s claimed membership was not credible. That conclusion was not based solely on the late provision of that information, as the applicant asserts. Rather, as discussed above, the IAA considered the applicant’s explanation for its late provision, the fact the applicant had been on notice that he should provide all relevant information at first instance, his express denial of LTTE membership in the interview, and the inconsistency of that claim with other evidence. That is, the IAA considered the criterion in s 473DD(b)(ii).
The IAA also considered that criterion in respect of the information concerning C, at [13] concluding that even if credible, the IAA was not satisfied the information may have affected consideration of the claim.
The IAA addressed the criterion in s 473DD(b)(i) of the Act at [14], and was not satisfied that the applicant could not have provided the new information prior to the delegate’s decision.
The IAA’s failure to be satisfied as to either of the criteria in s 473DD(b) of the Act meant that no occasion arose for the consideration of the exceptional circumstances criterion in s 473DD(a) of the Act, and the IAA was not permitted to have regard to the new information. The IAA’s consideration of the exceptional circumstances criterion in [14], whilst superfluous, does not constitute jurisdictional error.
CONCLUSION
As the applicant has not demonstrated jurisdictional error on the part of the IAA, the application must be dismissed with costs.
The parties will be given an opportunity to address as to the quantum of such costs.
I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust. Associate:
Dated: 19 August 2025
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