AWT18 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1609
•3 October 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AWT18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1609
File number: MLG 488 of 2018 Judgment of: JUDGE FORBES Date of judgment: 3 October 2025 Catchwords: MIGRATION – application for an extension of time – substantive application seeking judicial review of the decision of the Immigration Assessment Authority – protection visa – delay of 40 days – where new DFAT country information published around 11 months before Authority’s decision – whether Authority bound by Ministerial Direction no. 56 to consider most recent country information – whether unreasonable not to consider new information – whether arguable grounds exist – extension of time granted Legislation: Migration Act 1958 (Cth), ss 473CB, 473DB, 473DC, 473DD, 473EA, 477, 499
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021(Cth)
Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23
AYC18 v Minister for Immigration (No 2) [2020] FCCA 1637
BDI17 v Minister for Immigration (2018) 339 FLR 147; [2018] FCCA 2162
BHX18 v Minister for Home Affairs [2018] FCCA 3498
BHX18 v Minister for Home Affairs [2019] FCA 705
BND18 v Minister for Immigration [2019] FCCA 2218
BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34
CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146
CSU17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 97
CVZ17 v Minister for Immigration, Citizenship and multicultural Affairs [2022] FedCFamC2G 481
DTH17 v Minister for Immigration [2018] FCCA 729
DXH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475
DXP18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 774
FQF17 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1431
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Jackamarra (an infant) v Krakouer (1998) 195 CLR 516
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Minister for Immigration v SZMDS (2010) 240 CLR 611; [2010] HCA 16
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579
Division: Division 2 General Federal Law Number of paragraphs: 132 Date of last submission/s: 2 December 2024 Date of hearing: 2 December 2024 Place: Melbourne Counsel for the Applicant: Mr Krohn Solicitor for the Applicant: Vrachnas Lawyers Solicitor for the First Respondent: Ms Durham; Australian Government Solicitor The Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 488 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AWT18
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
3 OCTOBER 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Citizenship”.
2.The time for filing of the application for judicial review be extended to 26 February 2018 pursuant to s 477(2) of the Migration Act 1958 (Cth).
3.The amended application filed on 20 November 2024 be listed for final hearing on a date to be fixed.
4.Costs be reserved.
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 24.04(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
On 13 December 2017, the Immigration Assessment Authority (Authority) affirmed a decision of a delegate of the Minister to refuse the applicant a Safe Haven Enterprise Visa (SHEV).
On 26 February 2018, 40 days outside the 35-day time limit prescribed by section 477(1) of the Migration Act 1958 (Cth) (Act), the applicant filed an application for judicial review of the Authority’s decision.
By this interlocutory application, the applicant seeks an extension of time to apply for judicial review of the Authority’s decision. Pursuant to section 477(2) of the Act, the court has a discretion to grant an extension where an application has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order, and the court is satisfied that it is necessary in the interests of the administration of justice to make the order.
I have decided, in the circumstances of this case, that the applicant should be granted an extension of time to apply for judicial review of the Authority’s decision. At an impressionistic level, I am satisfied that the applicant has demonstrated at least one ground of review which enjoys some prospect of success. In my view, it is in the interests of justice for the extension to be granted.
BACKGROUND
The applicant is a citizen of Sri Lanka and is of Tamil ethnicity.
On 13 October 2012, the applicant arrived in Australia as an unauthorised maritime arrival.
On 11 August 2016, the applicant applied for a SHEV. The applicant claimed that he was fearful he would be tortured or face other harm upon return to Sri Lanka, due to his past connection with the Liberation Tigers of Tamil Eelam (LTTE), a Tamil militant group in Sri Lanka.
In a statutory declaration dated 2 August 2016, the applicant claimed that he was a fisherman and that up until 2004 he had been forced to assist the LTTE by providing his boat and driving his boat for them. He claimed that he was identified by the Karuna Amman group as an LTTE supporter after that group split from the LTTE in 2004. He claimed that the Karuna Amman group, accompanied by the military, came looking for him after the war ended in 2009 causing him to flee Sri Lanka, and that the local authorities came to his home again in 2016 asking questions about him[1]. He also expressed concern that his wife’s brothers were members of the LTTE which would be cause for further suspicion by authorities that he was an LTTE supporter.
[1] CB 73-77
Delegate’s decision
On 16 February 2017, a delegate of the Minister rejected the applicant’s visa application. After considering the applicant’s submissions, the delegate found that the applicant did not face a real chance of harm upon return to Sri Lanka.
The delegate accepted that the applicant was a Tamil male from the east of the country and that he had been forced to assist the LTTE at a low level. It also accepted that the Karuna, CID or police had visited his house in search of him on one occasion, but found that he had never been harmed, questioned or detained for suspicion of being affiliated with the LTTE.
Relevantly, in assessing the applicant’s claims against Australia’s refugee (s 36(2)(a)) and complementary (s 36(2)(aa)) protection obligations, the delegate relied upon and extensively footnoted country information, including the “DFAT Country Information Report Sri Lanka, 18 December 2015” (2015 DFAT Report).
On 23 February 2017, the application was referred to the Authority for review under the fast-track review process prescribed in Part 7AA of the Act.
On 15 March 2017, the applicant’s representative provided additional information to the Authority in support of the applicant’s claim. That information included a detailed submission which addressed issues arising from the delegate’s decision and additional country information in the form of a Human Rights Watch report.
Authority’s decision
On 13 December 2017, the Authority affirmed the delegate’s decision not to grant the applicant’s protection visa application.
The Authority stated that it had regard to the submission provided by the applicant’s representative and the Human Rights Watch report. The Authority was satisfied that the Human Rights Watch report post-dated the delegate’s decision and as such was “new information” that was not and could not have been provided before the delegate’s decision was made. The Authority was satisfied that there were exceptional circumstances which justified consideration of this new information [4]-[5].
The Authority accepted that the applicant was a Sri Lankan national and that Sri Lanka would be the receiving country for the purposes of the Act. It accepted that the applicant was a Tamil from the Eastern Province, that he had completed eleven years of schooling and that he worked as a fisherman and a welder until he departed Sri Lanka legally in August 2010 [9]-[10].
At [17] the Authority found that the applicant had provided credible evidence regarding his association with the LTTE. The Authority accepted that the applicant’s wife’s two brothers were members of the LTTE and that they had passed away in 1989 and 2006 respectively. The Authority accepted that the applicant had assisted the LTTE by transporting LTTE members and goods, including green boxes, on numerous occasions and that he had collected and provided the LTTE with fish. The Authority noted, however, that the applicant was never a member of the LTTE and received no training from them [17].
The Authority accepted the applicant’s claim that the Karuna group, a splinter group which separated from the LTTE, may have known that the applicant had provided assistance to the LTTE through the use of his boat [18]. However, the Authority was unimpressed with the applicant’s oral evidence regarding his claim that the police and Karuna had been searching for him. The Authority found the applicant’s evidence to be inconsistent, hesitant and generally unconvincing, undermining this claim [21]-[25].
At [25] the Authority found that it was unable to be satisfied that anyone had searched for the applicant at his home or asked him to attend the police station in 2010 as he claimed. The Authority also rejected the applicant’s claim that the Karuna group had taken his boat, had searched for him or threatened him. The Authority noted that there was no mention in the applicant’s written claims or oral evidence about these matters, nor was there any reference in his arrival interview to the police and the Karuna group attending his home after the war.
The Authority also did not accept that the Karuna group or the Sri Lankan authorities were looking for him after he fled the country, including in 2016 when they allegedly came to his home as claimed by his wife. While the Authority accepted that a village headman may have come to the applicant’s house in 2016, it found it reasonable to assume that any enquiries made about the applicant at that time merely related to the headman’s administrative role which included maintaining the voter registry [26].
From [28] the Authority assessed the applicant’s past involvement with the LTTE and whether that would give rise to him facing serious harm now and in the foreseeable future if returned to Sri Lanka.
Relying substantially on country information, including in particular the 2015 DFAT Report, the Authority found that the LTTE had been decimated as a fighting force in May 2009 and that there was no real chance of the applicant being harmed by the LTTE now and in the foreseeable future [29]. Based on that same country information, the Authority was satisfied that the Sri Lankan authorities would not regard the applicant as being a member or supporter of the LTTE or a security risk because he had never previously been questioned, detained, arrested or charged [30]. The Authority accepted that former LTTE members were subject to monitoring, but found that the applicant’s ability to obtain a valid passport and depart Sri Lanka without difficulty in 2010 indicated that he did not have an adverse profile with the authorities [31]-[32].
From [33] the Authority assessed the applicant’s claim that he would suffer persecution, serious harm or ill-treatment as a Tamil upon his return to Sri Lanka. Relying upon country information including the 2015 DFAT report[2] , and reports from the UK Home Office and the US Department of State, the Authority was satisfied that the applicant was not, and would not be regarded by the Sri Lankan authorities as, a person involved with the LTTE. The Authority was satisfied that the applicant would be able to return to Sri Lanka and live and work there without facing harm from the authorities, including the military, arising from his Tamil ethnicity or as a person from the east of Sri Lanka, or as a person suspected of supporting the LTTE and Tamil separatism.
[2] See Authority’s reasons, footnotes 9, 13, 14
The Authority separately assessed the applicant’s claim that he continues to fear harm from the Karuna group. Again, relying upon the 2015 DFAT report, the Authority accepted that there were credible reports of groups, such as Karuna, remaining active in Sri Lanka including in criminal activity, although those reports were difficult to verify.
In any event, the Authority found that men from the Karuna group had not searched for the applicant in 2010 as he had claimed. The Authority also found that although some members of the group knew that the applicant had assisted the LTTE with the use of his boat in 2004, thirteen years had passed and the Karuna group was no longer a paramilitary group or viable organisation.
As to the applicant’s fear of returning to Sri Lanka as a failed asylum seeker, the Authority noted that he had departed legally on a valid passport (which had subsequently been lost). The Authority accepted that if the applicant returned to Sri Lanka he would have to enter on a travel document which would lead to an assumption that he had sought protection in Australia. According to country information, again including the 2015 DFAT Report, the Authority found it likely that the applicant would be questioned at the airport and would have to undergo identification, character and security checks. However, the country information did not support a finding that failed Tamil asylum seekers are imputed with pro-LTTE opinion. Relevantly, at [44] the Authority cited an extract from the 2015 DFAT Report which stated that:
There have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, was relatively few allegations of torture or mistreatment…Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low.
The Authority was satisfied that the applicant would not be perceived by the Sri Lankan authorities to have links with the LTTE and was satisfied that he would not be arrested on return as a suspected LTTE member or supporter [46]. Further, the Authority was satisfied that the applicant would undergo routine processing on return and would be treated according to standard procedures, regardless of his ethnicity or religion [47].
At [51] the Authority found that the applicant did not meet the requirements for protection as a refugee pursuant to s 36(2)(a) of the Act. At [57], for essentially the same reasons, the Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, the applicant would face a real risk of significant harm requiring complementary protection under s 36(2)(aa).
APPLICATION FOR JUDICIAL REVIEW
On 26 February 2018, 40 days outside the 35-day time limit prescribed by s 477(1) of the Act, the applicant filed an application for judicial review of the Authority’s decision. The applicant claimed not to have received notification of the Authority’s decision until 21 February 2018 when he was contacted by the Immigration Department.
By an amended application lodged on 15 November 2024 and accepted for filing on 20 November 2024, the applicant contended that the Authority’s decision was affected by jurisdictional error in that the Authority had:
(1)failed to consider a relevant consideration;
(2)erred in interpreting or applying the law; and
(3)had no logically probative basis for findings on material questions of fact or is otherwise legally unreasonable.
Each of the broad grounds of review are extensively particularised in the amended application. Further details of the alleged errors will be explored later in these reasons when I consider whether or not the grounds reveal an arguable case.
Extension of time
The immediate application before the court is the application for an extension of time.
Section 477(2) of the Act[3] provides that:
(2)The Federal Circuit and Family Court (Division 2) may, by order, extend that 35-day period as the Federal Circuit and Family Court (Division 2) considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit and Family Court (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Circuit and Family Court (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.
[3] At the time of the application the court referred to in s 477A was the Federal Circuit Court, as this court was then known
The extension of time application was heard on 2 December 2024. The applicant was represented by Mr Krohn of counsel and the Minister by Ms Durham, a solicitor advocate.
Prior to the hearing each of the parties filed written outlines of submissions and the Minister prepared and filed a court book and list of authorities.
At the hearing, the applicant sought leave to rely upon an affidavit of the applicant dated 26 February 2018 which was made to support his application for judicial review. That affidavit seeks to address the circumstances of the 40-day delay.
The applicant also sought to rely upon two affidavits of his solicitors, one dated 26 November 2024 and another dated 1 December 2024. For reasons which will shortly become apparent, the first affidavit annexed a copy of the DFAT Country Information Report on Sri Lanka published on 24 January 2017 (2017 DFAT Report) and a copy of Ministerial Direction No. 56, a direction made pursuant to s 499 of the Act. The second affidavit annexed a copy of the 2015 DFAT Report and a copy of an earlier decision of the Authority in a different protection visa case which referenced the 2017 DFAT Report.
Each of the affidavits were treated as read and were relied upon in the course of the applicant’s oral submissions.
Relevant principles
The parties do not contest the relevant principles which apply to an application for an extension of time – they depart only on whether the application should be granted or refused in the particular circumstances of this case.
Section 477(2) of the Act empowers this Court to extend the 35-day time limit if satisfied that it is necessary in the interests of the administration of justice to do so. There are no prescribed factors which mandatorily fall for consideration in determining whether to exercise that discretion: see BTI15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 49 at [24]-[25] per Logan J. It is well-established that when assessing whether to extend time, the Court must evaluate all relevant circumstances of the case to decide if it is satisfied that the extension is necessary in the interests of the administration of justice: see BTI15 (supra) at [40] per Jagot and Halley JJ.
In the absence of prescribed factors for assessment, the following matters regularly arise for consideration and are relevant in the instant case:
(a)the length of delay;
(b)the explanation for the delay;
(c)balancing the interests of the parties, namely the relative prejudice to the Minister (and public interest) as well as the consequences for the applicant if time were not extended; and
(d)whether the proposed substantive grounds have a reasonable prospect of success, with that assessment to be (usually) taken at a reasonably impressionistic level, such that they warrant time being extended in order to be determined on a final basis: DXH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475 at [45] per Collier, Rangiah and Derrington JJ, MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [62] per Mortimer J (as her Honour then was); Jackamarra (an infant) v Krakouer (1998) 195 CLR 516 at [7] to [9] per Brennan CJ and McHugh J, BTI15 (supra) at [25] to [26] per Logan J and Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 at [16] to [18] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
When the Court examines the relative merits of a proposed substantive application at an impressionistic level, the standard of assessment, whether described as being arguable, reasonably or sufficiently arguable or having a reasonable prospect of success, has a low bar: DHX17 (supra) at [76] per Collier, Rangiah and Derrington JJ, SZRIQ v Federal Magistrates Court of Australia (2013) 236 FCR 442 at [47] per Foster J and Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348 to 349 per Wilcox J.
There will be some cases in which a closer examination of the merits is appropriate. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. The court’s broad power does not prevent a judge from undertaking a more detailed examination of the underlying merit and from relying upon that determination to refuse an extension of time: see Katoa (supra) at [18] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
Length and explanation for the delay
The applicant submits that the application for judicial review was filed less than 6 weeks after the expiry of the statutory time limit. He accepts that the application was filed out of time, but says that he acted immediately once he became aware of the Authority’s decision, which occurred only after he was contacted by the Immigration Department Status Resolution group on 21 February 2018.
In his affidavit affirmed on 26 February 2018 which accompanied his application for an extension of time, the applicant deposes that he contacted his migration agent immediately after he learned of the Authority’s decision. He says that he was told that the migration agent had posted a copy of the decision to him. The applicant deposes that he did not receive a copy of the decision, possibly explained by the fact that he lived with a number of other people and mail was often misplaced as no one in the household could read English.
In his oral submissions to the court, counsel for the applicant submitted that his client was not at fault and that his explanation for the delay should be accepted. Mr Krohn submitted that the applicant acted with expedition as soon as he became aware of the decision. He submitted that while the legislation contains provisions which deemed documents to have been received by a party when communicated to their nominated representative, the legislation also extends a discretion to the court to extend time where the justice of the matter warrants.
The applicant submits that this is an appropriate occasion for the exercise of that discretion in his favour. Citing McHugh J in Re Commonwealth; Ex parte Marks (2000) 75 ALJR 470; [2000] HCA 67 at [15] and in Gallo v Dawson (1990) 64 ALJR 458; [1990] HCA 30 at 459, Mr Krohn argued the principal importance of doing justice between the parties and not allowing rules to be used as instruments of injustice. Counsel submitted that in considering an extension of time application, the court should have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension. In that context, counsel reminded the court that the substantive matter relates to an application for refugee (or complementary) protection and that if an extension of time is not granted, the applicant will be shut out from running substantive arguments. Mr Krohn submitted that very reason the court is granted a discretion to extend time is to ensure that justice is done.
The Minister accepts that a 40-day delay is not egregious, but reminds the court that the grant of an extension of time is not automatic. The Minister notes that the application seeks to extend time to more than twice that provided by the Act.
The Minister’s representative argued that the explanation for the delay provided by the applicant should be seen as inadequate. There is clear evidence that the Authority’s decision was sent by email to the applicant’s authorised recipient on 14 December 2018[4] as required by the Act. The Minister submits that it is reasonable to expect that the applicant’s authorised recipient would take sufficient steps to ensure that the applicant was notified of the decision and that the timeframe for applications for judicial review would be drawn to his attention.
[4] CB 149
Moreover, the Minister submits that the applicant, knowing that mail was often misplaced in a household of non-English speakers, should have taken reasonable steps to ensure that he established other methods of contact with his authorised representative. The Minister submits that there is no evidence that the applicant or his representative considered other means of communication and that responsibility for failing to file an application for judicial review within time fell at their feet.
Prejudice to the Minister
The Minister does not claim to suffer any prejudice as a result of the delay. However, the Minister submits that the absence of prejudice itself is not enough to justify the grant of an extension of time: Hunter Valley Developments at 348-349.
The applicant submits that even if there were some prejudice to the Minister, it pales into insignificance relative to the prejudice the applicant would suffer if not able to seek substantive review of the Authority’s decision. Further, the applicant submits that any prejudice to the Minister is not so great that it could not be cured by an order for costs.
Merits of the substantive application for review
By his amended application dated 15 November 2024 the applicant submits that the Authority fell into jurisdictional error and seeks an order that its decision be quashed. The applicant also seeks that a writ of mandamus be directed to the Authority requiring it to determine his application according to law.
The applicant intends to advance the following grounds of review should the court be persuaded to grant an extension of time:
(1)The Authority fell into jurisdictional error in that it failed to consider a relevant consideration.
Particulars (in summary)
(a)the Authority failed to consider an articulated claim raised by the applicant that his return to Sri Lanka on an Australian travel document as a failed asylum seeker would provide him with an adverse profile and lead to the discovery of his close familial links to his two brothers-in-law who were killed fighting for the LTTE;
(b)the Authority did not consider the limitations on the purpose of the Entry Interview when assessing the significance of things recorded as said or not said at that interview, especially in assessing the credibility of the applicant;
(c)the Authority did not consider the then most recent report prepared for decision-makers in protection matters being the 2017 DFAT report;
(d)the Authority did not consider with the engagement required by law the report by the Human Rights Watch, notwithstanding it said it considered that report.
(e)the Authority did not consider with the engagement required by law the question of whether the applicant may spend even a short time in detention on return to Sri Lanka by reason of being suspected even for a short time of having left the country illegally, either because he would return on a temporary travel document or because he left Sri Lanka with the assistance of a “travel agent” or people smuggler;
(f)further or in the alternative to particular (e), the Authority did not consider the risk of the applicant suffering relevant harm by abuse while undergoing interrogation or in detention on return;
(2)The Authority fell into jurisdictional error in that it erred in interpreting or applying the law.
Particulars (summarised)
(a)the Authority was in breach of s 473DB of the Act in that it did not review the decision of the delegate by reference to all of the referred material;
(b)the Authority was in breach of ss 473DC and 473DD in that it did not consider as required by law the 2017 DFAT report and the Human Rights Watch report; and
(c)the Authority was in breach of Direction 56 given by the Minister under s 499 of the Act, in that it did not consider the 2017 DFAT report.
(3)The Authority fell into jurisdictional error in that it had no logically probative basis for findings on material questions of fact or was otherwise legally unreasonable.
Particulars (summarised)
(a)the Authority had no logically probative basis for its adverse assessment of the credibility of the applicant;
(b)the Authority had no logically probative basis for not accepting the applicant’s claim that the Karuna group or the Sri Lankan authorities, either military or police, had come searching for him; and
(c)given the Authority’s acceptance that the applicant had family members in the LTTE and that he had worked for the LTTE, it was legally unreasonable not to find a real chance that he might suffer relevant harm due to the combination of this background in the investigation that would be undertaken by Sri Lankan authorities on his return.
The applicant submits that each or any of the proposed grounds of review are sufficiently meritorious in that they are properly arguable and have a reasonable prospect of success when argued substantively. The applicant submits that the strength of the substantive grounds are such that in combination with the short delay and lack of prejudice to the Minister, the applicant should be permitted to develop those grounds fully at a final hearing.
The applicant submits that to justify the grant of an extension of time in the present case, given the relatively short delay in filing the application for review, it is sufficient for the Court to be satisfied at an impressionistic level that one or more of the grounds are arguable. The applicant contends that given a refusal to grant an extension of time is not appellable and the potential consequences for the applicant’s safety could be dire, it is sufficient that the court be satisfied that the grounds or any of them are properly arguable.
Conversely, the Minister submits that it would seldom be in the interests of the administration of justice to grant an extension of time where the substantive application for review has little or no prospects of success. The Minister submits that a more thorough assessment of the proposed grounds of review expose them as unmeritorious and bound to fail.
It is necessary for the court to consider the substantive grounds of review as part of its assessment as to whether it should exercise its discretion to grant an extension of time. Given the Minister’s submission that the grounds have little or no prospect of success and that the extension of time should be refused, it is necessary to assess the grounds of review against that high threshold. If I find, contrary to the Minister’s submission, that one or more of the grounds is arguable and has a prospect of success, it would weigh heavily in favour of the grant of an extension of time.
The Minister correctly observes that the three substantive grounds of judicial review have various overlapping particulars. In written submissions, the Minister grouped relevant issues together and I propose to adopt that approach below, although in a different order.
Ground 1 - Failure to consider relevant considerations
In his written outline, counsel for the applicant submitted that there “were converging layers of obligations on [the Authority] to consider relevant matters”[5] as part of its merits review of the visa application. Among those obligations was the requirement for the Authority to have regard to the material before it (s 473DB) and to consider each and every necessary and relevant consideration.
[5] Applicant’s outline of submissions at [20].
In relation to the broad assertion that the Authority fell into jurisdictional error by failing to consider relevant matters, the Applicant relied upon the following statements of principle which I do not take to be contested:
(a)When making a decision on a claim for a protection visa, the Authority must have regard to each claim and integer of a claim for protection. It must consider a material question of fact squarely raised by the material before the Authority. Failure to do so is a jurisdictional error: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263;
(b)An error about important information or a failure to have regard to it, can be an error of law and is a sign of jurisdictional error: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3;
(c)The Authority must grasp and consider seriously the material before it: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17; but not material which does not meet the requirements of Part 7AA including ss 473DC and 473DD.
(d)By reason of s 473EA of the Act, a decision-maker must set out findings on material questions of fact and refer to the evidence on which the findings were made. The court can infer from the Authority’s statement of reasons that if an issue is not mentioned, it has not been considered: Minister for Immigration and Multicultural Affairs v Yusuf[2001] HCA 30; (2001) 206 CLR 323, (in relation to s 430 and decisions of the then Refugee Review Tribunal);
(e)If an error may as a real possibility have affected the decision, it is material and a jurisdictional error.
Alleged failure to consider the applicant’s claim that he would be detained and face harm on return to Sri Lanka (Ground 1, particulars (a), (e) and (f))
Particular (a) contends the Authority failed to consider the applicant’s claim that he would face harm as a failed asylum seeker, because of his adverse profile arising from him travelling on an Australian travel document and his close familial links to his 2 brothers in law who were killed fighting for the LTTE. Particular (e) similarly claims the Authority failed to properly engage with the question of whether the applicant would spend even a short time in detention by reason of being suspected of leaving the country illegally. Particular (f) then contends the Authority failed to consider whether the applicant would face harm when being interrogated or in detention.
Applicant
The applicant says that his claim of fearing arrest by authorities at the airport because of his association with the LTTE was set out in [14]-[17] of the statutory declaration made on 2 August 2016. This claim was also supplemented by submissions made by his representatives to the Authority which noted that the applicant had a history of connection with the LTTE and that he expected he would be subject to some questioning at the airport on his return. The applicant submits that he made a clearly articulated claim to fear harm on this basis and that the Authority had an obligation to properly consider it as such.
The applicant notes that in its reasons at [17] the Authority made positive findings regarding his claims of being associated with the LTTE. There the Authority said:
[17]… I find that the applicant has provided credible evidence regarding his association with the LTTE and this, combined with the country information referred to[6]… leads me to make the following findings of fact. The applicant’s wife’s two brothers were members of the LTTE and they passed away in 1989 and 2006; the applicant assisted the LTTE by transporting LTTE members and goods, including green boxes, on numerous occasions in 2004 and collected and provided the LTTE with fish in 2003 and 2005; the applicant was never a member of the LTTE and received no training from the LTTE.
[6] DFAT, “Country Information Report – Sri Lanka”, 18 December 2015 and UK Home Office, "Country Information and Guidance - Sri Lanka: Tamil separatism”, May 2016.
The applicant says that despite these findings the Authority failed to consider the risk of the applicant suffering relevant harm by abuse while undergoing interrogation or in detention on return, even though that fear was squarely raised in the submissions to the Authority and in the content of the Human Rights Watch report.
Counsel for the applicant submitted that the court can infer from the Authority’s statement of reasons that if an important issue is not mentioned, it has not been considered. In support of his submission, the applicant reiterated the observation of Gleeson CJ in Yusuf at [5] that:
When the Tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and will be understood by a reader, including a judge reviewing the Tribunal's decision, in the light of the statutory requirements contained in s 430. The Tribunal is required, in setting out its reasons for decision, to set out "the findings on any material questions of fact". If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material. (Emphasis added)
The applicant submitted that there is a properly arguable point that the Authority failed to consider what might unfold for the applicant if the authorities were to consider his profile afresh on his return, given his association with the LTTE. Given the Authority’s acknowledgement that the applicant had connections to the LTTE and that he would be questioned at the airport, counsel submitted that the Authority should have turned its mind to the possible consequences and risks for the applicant if a different view was formed about his profile.
Minister
The Minister submits that the issues of detention, interrogation and harm on arrival in Sri Lanka never properly arose for consideration. The Minister argued that the Authority was completely across the applicant’s background, the nature of his connection to the LTTE, the circumstances of his departure from Sri Lanka in 2010 and his profile in coming to the conclusion that the applicant, as a returnee, would likely be released once authorities were satisfied of his identity. In coming to that conclusion, the Authority relied on relevant country information, as summarised in the delegate’s decision and referred to in the Authority’s decision.
In considering the applicant’s profile and the likelihood of him being detained, the Minister submitted that the Authority plainly took into account his claim that his brothers-in-law were members of the LTTE. The Authority also took into account the applicant’s own past involvement with the LTTE. The Authority also noted that the applicant would likely return to Sri Lanka on a temporary travel document and would be identified as someone who had sought protection in a foreign country.
Notwithstanding, the Minister submits that it was entirely open to the Authority to conclude on that set of facts that there was little or no realistic prospect of the applicant being detained at the airport, beyond normal processing. The Authority found that the applicant’s connections with the LTTE would not give him an adverse profile with authorities. In this regard, the authority noted that the applicant had not been arrested or detained after the war and that he was able to obtain a passport and depart Sri Lanka legally. Accordingly, the Minister submits that the Authority correctly understood the applicant’s profile and its findings (particularly at [46]) were sufficient to dispose of the applicant’s claim: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [47].
Weight given to entry (or arrival) interview evidence (Ground 1, particular (b))
The applicant contends that the Authority did not consider the limitations or purpose of the Entry Interview when assessing the significance of things recorded as said and not said at that interview, especially in its overall assessment of the applicant’s credibility.
Applicant
In his oral submissions, counsel for the applicant submitted that the issue of credibility was critical in this case and to the determination of the application for protection. Counsel submitted that inconsistencies between statements given by the applicant in his arrival interview and more recent evidence given to the delegate and to the Authority were not a fair basis for the making of adverse credibility findings.
It was submitted that in his arrival interview the applicant was required to answer 60 questions in 110 minutes with the assistance of an interpreter and that there was no opportunity for him to develop his responses in a way he was able to later in time. The applicant submits that the Authority placed undue weight on the content of the entry interview, its limitations were not recognised and that inconsistencies in his more recent evidence have been exaggerated. The applicant submits that is unsurprising in a migration context for there to be different accounts given at different times, years after the events in question.
Minister
Again, the Minister submits that the applicant’s argument is misconceived. The Minister submits that when read as a whole the Authority’s reasons disclose that the adverse credibility findings were not based on inconsistencies in the entry interview alone. Rather, the consideration of those inconsistencies should properly be understood as being in addition to other substantial concerns raised in relation to the applicant’s claim.
By way of example, the Authority rejected the applicant’s claim that the Sri Lankan authorities and the Karuna group had been searching for him in 2010. It rejected the claim on the basis of the evidence he gave at the SHEV interview which the delegate found to be “hesitant and generally unconvincing”. It also rejected the claim on the basis that the applicant’s statutory declaration was inconsistent with the evidence he gave at the SHEV interview. The Authority found at [22]-[23] that those concerns, already expressed, were increased because of inconsistencies in the evidence the applicant had given in the entry interview. Read that way, the Minister submits that the entry interview was given fair and not disproportionate weight.
Failure to consider the 2017 DFAT Report (ground 1, particular (c) and ground 2, particulars (b) and (c))
Applicant
The applicant submits that the Authority fell into jurisdictional error by failing to take into account the 2017 DFAT Report on Sri Lanka.
The 2017 DFAT Report was published on 24 January 2017, approximately 11 months before the Authority made its decision in relation to the applicant’s protection visa application. The applicant contends that the failure to consider that more recent specific country information amounted to jurisdictional error because:
(a)it constituted a manifest failure by the Authority to consider relevant and available information which was central to the performance of its de novo review of the application for protection; and/or
(b)further or in the alternative, the Authority was in breach of ss 473DC and 473DD in that it did not consider the 2017 DFAT Report as required by law; and/or
(c)further in the alternative, by Direction 56 given by the Minister under s 499 of the Act, the Authority was legally bound to have regard to the most recent available DFAT country information and failed to do so.
Whichever way one looks at it, the applicant submits that the Authority fell into error by failing to consider relevant and probative country information which was of more recent origin and more fully developed than the 2015 DFAT Report upon which the delegate relied.
The applicant submitted that there are material differences between the 2015 and the 2017 DFAT Reports which might have affected the Authority’s decision-making. In his oral submissions, the applicant’s counsel pointed out differences which are evident at paragraphs [4.13], [4.15], [4.16] and [4.18]-[4.19] of the 2017 DFAT Report as compared to its previous iteration. In those paragraphs, which appear under the heading “Torture”, DFAT cites and relies upon information obtained from the UN Special Rapporteur’s visit to Si Lanka in April and May 2016 and an October 2016 report prepared by the Human Rights Commission of Sri Lanka to the UN Committee Against Torture. Those reports recorded that there continued to be instances of torture carried out by the police and the torture was reported to have been used during interrogations and arrests regardless of the nature of the suspected offences.
The applicant submits that this information, not available at the time of 2015 DFAT Report, had the potential to materially affect the Authority’s assessment of the applicant’s claims, including his fear of mistreatment by Sri Lankan authorities. The applicant submits that the 2017 DFAT Report provides a far more solid foundation for the proper assessment of his claims and that it was a necessary consideration in discharging the Authority’s statutory task.
The applicant concedes that the 2017 DFAT Report did not form part of the referred materials for the purposes of the fast-track Part 7AA review. Nonetheless, the applicant submits that although it has no duty to do so, the Authority does have a discretion pursuant to s 473DC(1) to get any documents or information (new information) that was not before the delegate and which the Authority considers may be relevant. Section 473DD permits the Authority to consider new information which was not, and could not have been, provided to the delegate prior to making their decision or is credible personal information and where exceptional circumstances exist to justify considering the new information.
The applicant submits that in circumstances where the 2017 DFAT Report had been in existence for approximately 11 months prior to the Authority’s decision, the Authority exercising its discretion pursuant to s 473DC(1) reasonably, should have sought out and considered the more recent report. Further, the applicant submits that when one considers that DFAT Reports are prepared primarily for the purpose of informing migration reviews of the type undertaken by the Authority, it would be surprising if not staggering if its existence had not percolated through to the decision-makers who comprise the Authority. Even if the 2017 DFAT Report had not been expressly brought to the attention of the Authority, the applicant submits that it is material of a type that the Authority, acting reasonably, should be on the lookout for. The applicant submits that the Authority, acting reasonably, should always ask itself before deciding a matter “Is there a more recent report?”.
Moreover, the applicant also submits that Ministerial Direction 56 bound the Authority to consider the 2017 DFAT Report as the most recently available country information. The applicant concedes that there is judicial authority to the effect that Direction 56 is binding only on the Administrative Appeals Tribunal and not the Authority, but submits that those cases were wrongly decided and should not be followed. The applicant submits that the proper construction of the Ministerial Direction is that the Authority was legally bound to consider the later report because it would be absurd if the Ministerial delegate and the AAT were required to do so but the IAA was not.
The sum of the applicant’s submissions in relation to the 2017 DFAT Report (noting that the submissions been advanced in support of an interlocutory application rather than being fully argued at a substantive level) is that the Authority’s failure to consider the most recent specialist country information prepared by an Australian government agency which had been available for the best part of 12 months amounted to a manifest failure to take into account information which had the potential to affect the assessment of the applicant’s claims for protection. That failure amounts to jurisdictional error.
Minister
The Minister does not challenge the inference that the 2017 DFAT Report was not part of the “review material” provided to the Authority under s 473CB. However, the Minister notes that the applicant could have but did not seek to provide a copy of the 2017 DFAT Report to the Authority.
The Minister submits that in circumstances where the 2017 DFAT Report did not form part of the review material and was not provided by the applicant as “new information”, the only way in which it could have been considered by the Authority was if the Authority itself decided to exercise its discretion in s 473DC(1) to get new information. Although the Minister concedes that the discretion is one which must be exercised reasonably, the Minister emphasises that there is nothing in the Act which requires the Authority to give reasons for the exercise or non-exercise of its discretion. Accordingly, it is submitted that the mere absence of any reference to the 2017 DFAT Report in the Authority’s reasons, cannot support the drawing of an inference that the exercise of discretion under s 473DC was not considered: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [40].
Further, the Minister submits that even if there was a failure by the Authority to consider the exercise of its discretion to get new information under s 473DC, that failure should not be considered as unreasonable: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [60]. The test for legal unreasonableness is high. What is reasonable or unreasonable must be considered in the context of the statutory scheme which, under Part 7AA is intended to be one of limited review on the referred material. Although s 473DC(1) confers a discretion on the Authority to seek new material, there is no obligation on it to do so.
The Minister submits that the applicant’s alternative argument, that the Authority breached Ministerial Direction 56 by failing to take into account the 2017 DFAT Report, can be disposed of easily. The Minister relies upon prevailing judicial authority which has found that the Direction does not apply to the IAA: BDI17 v Minister for Immigration (2018) 339 FLR 147; [2018] FCCA 2162 at [70]; DXP18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 774 at [85]. The Minister submits that those cases were correctly decided and should be followed unless this court considers them to be plainly wrong.
Finally, the Minister submits that the applicant has failed to establish that any failure to consider the 2017 DFAT Report was material. The Minister contends that when the 2015 and 2017 reports are compared, they are substantially the same and that the differences in commentary around the issue of detention and torture could not have led to any material difference in the Authority’s consideration of the applicant’s claim.
In written submissions, the Minister noted that the differences between the 2015 and 2017 DFAT Reports, including paragraphs [4.12]-[ 4.22] were considered by Judge Mansini in CSU17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 97 at [72]-[78]. In that case, her Honour found that those parts of the updated report were immaterial to the applicant’s profile and not of substance in the context of the IAA’s findings. It is submitted that the same is true in this case where the Authority found that the applicant did not have a profile of interest to the Sri Lankan authorities.
The Minister submits that given the Authority’s finding that the applicant did not have a profile which would result in him being detained and interrogated, the risks of torture identified in the 2017 DFAT Report, by reference to the 2016 UN Rapporteur’s report and the 2016 Sri Lankan Human Rights Commission report, would not have fallen for consideration.
Failure to consider the Human Rights Watch report (ground 1, particular (d))
Applicant
The applicant also seeks to impugn the decision of the Authority on the basis that it did not properly engage with the Human Rights Watch report which had been referred to by representatives of the applicant in their written submission to the Authority. The applicant concedes that the Authority said at [5] that it had considered the report, but the applicant points to the content of the Authority’s reasons and footnotes which make no reference to that report at all. The applicant submits that the Authority was required by law to engage with this new information but it plainly failed to do so.
The applicant’s submission is that the Human Rights Watch report was important independent source of new information and it could have materially informed the Authority’s assessment of the applicant’s claims in the Authority’s decision making. The applicant submits that if the Authority had truly turned its mind to the report, one would have expected it to disclose some aspect of that consideration in its reasons. The absence of any reference to the content of the report should be taken as giving rise to an inference that the report was not considered at all.
Minister
The Minister responded to this submission, primarily by reference to the question of materiality. The Minister accepted that the Human Rights Watch Report was relied upon in the applicant’s submission to support the claim that torture was used by Sri Lankan authorities against people were detained due to suspected LTTE links or when being investigated for other minor offences.
However, the Minister submits that the Authority found that the applicant would not be regarded as being involved with the LTTE, would not be arrested on his return and would not be detained or interrogated. In light of those findings, the Minister submits that the Authority was not bound to consider country information about the treatment the applicant might face if detained. Put simply, the observations in the Human Rights Watch Report regarding torture could not have had any bearing on the decision-making process.
Ground 3 – Legal unreasonableness
Applicant
The applicant contends that the Authority fell into jurisdictional error in that it had no logically probative basis for findings on material questions of fact or is otherwise legally unreasonable. The allegations of unreasonableness are expressed as alternatives to other species of error already pleaded under grounds 1 and 2.
When developing this ground in oral argument, counsel for the applicant pointed to the following instances of unreasonableness.
First, it was submitted that the Authority had no logically probative basis for its adverse assessment of the credibility of the applicant. The applicant relied upon the Authority’s finding that there were inconsistencies between the information the applicant gave at the entry interview and his later evidence to the delegate and the Authority. The applicant submits that the Authority was unreasonable not to have considered the four-year time gap between those events and the different circumstances in which the accounts were given before making an adverse credit finding.
Secondly, the Authority had no logically probative basis for not accepting the applicant’s claim that the Karuna group or the Sri Lankan authorities, either military or police, had come searching for him. The applicant submits that the rejection of this claim was not based on evidence, but based on the adverse credibility finding – which he seeks to impugn above.
Thirdly, considering the Authority’s acceptance that the applicant had family members in the LTTE and that he had worked for the LTTE, the applicant argues that it was legally unreasonable not to find a real chance that he might suffer relevant harm at the hands of Sri Lankan authorities on his return.
Minister
The Minister submitted that the plea of legal unreasonableness is without merit and that the applicant’s complaints have been addressed in its response to ground 1.
Unsurprisingly, the Minister submitted that jurisdictional error for unreasonableness (or illogicality or irrationality in decision-making: Minister for Immigration v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [128]-[130] per Crennan and Bell JJ) can only be made out if an applicant can establish that no reasonable decision-maker possessed of the same evidence could have arrived at the same decision. Legal unreasonableness cannot be used as a proxy for what is in effect impermissible merits review. The minds of decision-makers, acting reasonably, may differ. The applicant must, but in this case cannot, establish extreme illogicality or irrationality: see CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [60]-[61]; citing Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52], [54]-[56].
Further the issue of reasonableness must be considered in the context of the statutory scheme, here a Part 7AA “fast-track” limited review on the papers.
CONSIDERATION
Based on the evidence and submissions before me I am prepared to accept the applicant’s explanation of the reasons for his delay in filing the application for judicial review. The application was filed 40 days outside the statutory time limit, which is not excessive, and I accept that the applicant did act with expedition when he found out about the Authority’s decision. My consideration of this factor is also influenced by my findings, at an impressionistic level, about the merit of his application for judicial review.
I do not consider that an extension of time will occasion prejudice to the Minister. I accept of course that the absence of prejudice is not a reason, of itself, to grant an extension of time. However, I consider that a refusal to exercise my discretion to extend time would visit prejudice upon the applicant by denying him the opportunity to advance his grounds of jurisdictional error, at least one of which is reasonably arguable and has some prospect of success. It would not be in the interests of justice to deny the applicant that opportunity.
I turn then to the merit of the applicant’s grounds.
In the course of these reasons, I have set out the competing arguments of the applicant and the Minister in relation to each of the grounds of jurisdictional error upon which the applicant seeks relief. For the purposes of this application, I have considered the merit of each of those grounds at an impressionistic level in order to determine whether any one or more of them weigh in favour of an extension of time. Any consideration of the interests of the administration of justice does not invite a wholesale review of the merits of the proposed application.
The applicant seeks to impugn the decision of the Authority on numerous bases. The applicant’s grounds have been advanced under different species of jurisdictional error. For the most part, save for one issue, I consider the grounds to be ambitious and lacking in persuasive force. I do not consider it necessary to take my analysis any further than that.
There is, however, one issue which, howsoever expressed, does merit consideration at a substantive hearing. That is the alleged failure by the Authority to consider the 2017 DFAT Report, a specialist report prepared and released nearly 11 months prior to the Authority’s decision. In my view it is in the interests of justice for the Court, on judicial review, to determine whether that report should have been considered by the Authority and, if so, whether its failure to do so had a material impact on its assessment of the applicants claim for protection.
The alleged failure by the Authority to consider the most recent country information, notably the 2017 DFAT Report on Sri Lanka, as a ground of jurisdictional error, was recently considered by me in FQF17 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1431.
In FQF17 the delegate refused an application for a protection visa. The delegate’s decision to refuse the visa was informed in part by then current country information contained in a report published by DFAT titled “DFAT Country Information Report - Sri Lanka”. That report was published on 18 December 2015.
On 24 January 2017, a day after the delegate’s decision, DFAT published an updated “DFAT Country Information Report - Sri Lanka”[7] (the 2017 DFAT Report). Paragraph 1.5 of the 2017 report states, inter alia:
1.5This updated Country Information Report replaces the previous DFAT report on Sri Lanka published on 18 December 2015.
[7] Affidavit of Kathleen Clare Coffey sworn 8 August 2024, annexure KC-1
The 2017 DFAT Report was not in the materials referred to the Authority, and could not have been, because it was published after the delegate’s decision. Although the applicant did not provide a copy of the 2017 DFAT Report to the Authority, the applicant did draw the existence of the 2017 DFAT Report to the Authority’s attention in a written submission provided by the applicant’s solicitor. When the Authority published its decision on the review it did not contain any reference to the 2017 DFAT Report, although the reasons did reveal consideration of, amongst other things, the 2015 DFAT Report.
Mr Krohn, who appears for the applicant in this application, appeared as counsel for the applicant in FQF17 and, at least on this point, advanced similar arguments as he does here: see FQF17 at [112]-[122]. That is, the applicant submitted that the Authority, acting reasonably, should have exercised its discretion under s 473DC(1) to obtain the more recent 2017 DFAT Report. Moreover, the applicant argued that the Authority was in fact bound to consider the report by reason of Ministerial Direction 56: see FQF17 at [125]-[130]. I will not set out those arguments again here.
In FQF17, I rejected the applicant’s submission that the Authority was bound by Ministerial Direction 56 to consider the most recent country information. For the reasons set out at [147]-[153] of the judgment I found that the ministerial direction does not apply to the Authority: see also DTH17 v Minister for Immigration [2018] FCCA 729; BHX18 v Minister for Home Affairs [2018] FCCA 3498; BND18 v Minister for Immigration [2019] FCCA 2218; DXP18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 774.
Although I accept that the line of authority developed in this Court has not yet been clearly endorsed at appellate level (although see Rares J in BHX18 v Minister for Home Affairs [2019] FCA 705) and therefore might be said to remain arguable, I would consider myself bound to determine the argument same way. The Direction 56 submission is an argument with very limited to poor prospects.
However, in FQF17, in the particular circumstances of that case, I found that the Authority did fall into jurisdictional error by failing to consider the 2017 DFAT report. I found that it was legally unreasonable for the Authority not to have done so and that the error was material. At [155] and following I stated:
[155] Part 7AA emphasises that there is no duty on the Authority to conduct a hearing or request new information from the applicant. However, in s 473DC the Authority is vested with discretions which enable it to consider additional material and to make relevant enquiries in certain prescribed circumstances.
[156] The Authority must exercise the discretion in s 473DC reasonably.[8] It is plainly open to the Court to find that an unreasonable failure to consider information which ought to have been considered can give rise to jurisdictional error, even if the decision-maker was not bound by legislative instrument to take the information into account.
[157] In CVZ17 v Minister for Immigration, Citizenship and multicultural Affairs [2022] FedCFamC2G 481, Judge Humphreys of this Court considered another case where a Sri Lankan applicant alleged that the Authority had fallen into jurisdictional error by failing to consider the 2017 DFAT country information. In relation to the principled approach to a case such as the present, his Honour said at [37]-[38]:
[37] In some circumstances it may be unreasonable for the Authority not to seek, or consider seeking, the most recent DFAT country information report regarding an applicant’s country of reference: (see; BDI17 v Minister for Immigration [2018] FCCA 2162 at [70] – [72]; BND18 v Minister for Immigration [2019] FCCA 2218 at [49]). The decision as to whether it would be unreasonable for the Authority not to seek such report, depends, in part upon whether the updated DFAT report differs in its conclusions from a previous DFAT report: (see; BHX18 v Minister for Home Affairs [2018] FCCA 3498 at [52], [78](c) and [81]). Further, it is not necessarily an error for the Authority to rely on old DFAT report where the old report is not contradicted or rendered unreliable by the new report: (see; AYC18 v Minister for Immigration (No 2) [2020] FCCA 1637 at [103], [107]).
[38]The Authority’s reasons for its decision does not expressly state that it considered seeking the 2017 report. However that does not, of itself, support an inference that the Authority did not consider exercising that discretion, because the Authority is not required to record in its reasons whether it has considered exercising a procedural discretion: (see; CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [42]).
[158] The onus is on the applicant to establish that the Authority did not consider exercising its discretion to seek the 2017 report. In CVZ17, the applicant failed to do so.
[8] Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [21], [86], ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439at [3], [61], [80].
In FQF17 I expressed the view that consideration of the most recent available country information is a core aspect of the decision-maker’s task: Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [73]-[74]. It is not necessarily an error for a decision-maker to rely on an old report, particularly where the old report is not contradicted or rendered unreliable by a new report. But, where a new report is known or ought to have been known to be in existence, one would expect to find some explanation from the decision-maker as to why the later report was not considered or the earlier report was preferred.
The question of legal unreasonableness will always be fact dependent and it must be determined according to the relevant statutory scheme. Facts of the present case are close to but are different from the facts I considered in FQF17. One important point of difference was that in FQF17 I found that the Authority had constructive knowledge of the more recent 2017 DFAT Report because it had been drawn to the attention of the Authority in a submission prepared by the applicant’s solicitors. In the present case it is accepted that the applicant did not raise the more recent report and there is no direct evidence that the Authority knew about it.
Nonetheless, on the question of legal unreasonableness, I made the following observations in FQF17 which I consider are apposite to the current application:
(a)it was plain from the reasons of the delegate that the 2015 Report informed many of its findings. That report was extensively footnoted and the report itself formed part of the materials referred to the Authority. The relevance of country information to the assessment of the applicant’s claims for protection should have been starkly apparent to the Authority;
(b)a primary purpose of DFAT country report is to inform decision-makers with respect to protection visa applications. For delegates and the Administrative Appeals Tribunal that purpose is reinforced by the mandatory requirement in Direction 69 to take such reports into account. Even though that Direction does not apply to the Authority, the inherent importance and weight of current country information should be self-evident to a decision-maker undertaking a de novo review of a protection visa refusal;
(c)even if there was no evidence that the Authority had actual knowledge of the 2017 DFAT Report, I would be extremely surprised if members of the Authority were unaware of it. Decisions of the Authority routinely rely on DFAT Reports as a source of country information and it would be reasonable to expect that the most recent version would be brought to the attention of decision-makers within the Authority and made readily accessible; and
(d)I do not agree that the differences between the 2015 and 2017 DFAT Reports can be dismissed as immaterial. True it is that the vast majority of the content in the two documents is common and that the latter is an update of the former, rather than a completely new publication. But in my view that only highlights the importance of the update as it introduces more recent information which is considered worthy of inclusion.
In the current application for an extension of time, the following facts stand out as a beacon. The 2017 DFAT Report was published on 24 January 2017. The introduction to that report[9] states unambiguously that it “…replaces the previous DFAT report on Sri Lanka published on 18 December 2015.” The delegate’s decision was made on 16 February 2017 and the matter was referred to the Authority on 23 February 2017. The Authority affirmed the delegate’s decision on 13 December 2017.
[9] Paragraph [1.05]
The facts suggest that the delegate’s decision was made after the publication of the 2017 DFAT Report. That significance of that fact has not been agitated before me. But what is more striking is that the decision of the Authority was not delivered until nearly 11 months after the 2017 DFAT Report was published. Counsel for the applicant submitted that it is startling that the Authority’s decision continued to rely heavily on the 2015 report and made no reference at all to the more recent country information. I, too, find that to be at the very least odd.
In my view it is certainly arguable that the Authority unreasonably failed to exercise its discretion pursuant to s 473DC(1) to obtain the 2017 DFAT Report, unreasonably failed to turn its mind to whether a more recent DFAT Report existed or failed to properly engage with the more recent report if it was aware that the report existed.
An error will only amount to jurisdictional error if there is a realistic possibility that the Authority’s decision could have been different had that error not occurred: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at [7].
The Authority’s task is to be informed by the country information as part of its own independent assessment of the applicant’s claims and his fear of harm. That independent assessment requires the Authority to engage in a predictive and speculative consideration of the circumstances to which an applicant might be returned. I cannot exclude the realistic possibility that the 2017 DFAT Report, if it had been considered by the Authority, could have impacted the assessment of the claims raised by the applicant.
DISPOSITION
In MZABP, Mortimer J (as her Honour then was) observed at [63] that the correct approach to the assessment of merit in an extension of time application may be expressed by the use of language such as whether the ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success”.
The subject matter of an application under s 477(2) is whether time for bringing a judicial review application which is to be heard in the ordinary course of the processes of the Court should be extended. The subject matter is not whether the applicant will ultimately be successful in impugning the merits review decision.
For the reasons set out above I am satisfied that the application for judicial review advances a ground which is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success”. Accordingly, I am satisfied that it is necessary in the interests of the administration of justice to make an order extending the time to apply for judicial review of the decision of the Immigration Assessment Authority made on 13 December 2017.
An order will be made to that effect and the substantive application for judicial review will be returned to the court’s Migration Team to be listed for further directions and hearing on a date to be fixed.
COSTS
At the hearing of the interlocutory application, the parties put their competing positions in relation to costs.
The applicant submitted that if the application for an extension of time is refused, that will be the end of the matter and the Minister should get his costs. However, if the application is successful, counsel for the applicant submitted that the Minister should be ordered to pay the applicant’s costs. Counsel submits that the costs should be $3,977.21, being the costs for an interlocutory event calculated as the sum of Items 3, 9 and 10 under Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 (Cth) (Rules).
The Minister submitted that if the application for an extension of time is refused, the applicant should be ordered to pay costs in the sum of $4,089.38, the applicable rate under Item 2 of the scale for Migration proceedings as set out in Schedule 2, Part 3, Division 1 of the Rules. If, on the other hand, the application is successful, the Minister submits that the costs should be reserved pending the hearing and determination of the substantive judicial review application.
The application for an extension of time has been successful. The success of the application rests on my finding, at an impressionistic level, the applicant has an arguable case which he should be given an opportunity to advance in a substantive hearing. The substantive merit of his application will be determined by another Judge at another time. The costs of this application should be reserved pending the final hearing and determination of the matter.
I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 3 October 2025
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