BFO18 v Minister for Immigration and Citizenship - [2025] FedCFamC2G 1290

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BFO18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1290

File number: MLG 640 of 2018

Judgment of: JUDGE FORBES

Date of judgment: 13 August 2025

Catchwords: MIGRATION – Protection visa refusal – judicial review of decision of Immigration Assessment Authority – suspected political group involvement – where Authority decided not to consider new information – where Authority found applicant’s political involvement low-level – no real chance of harm found – whether new information was credible personal information – whether Authority misunderstood or misapplied s 473DD – error established – whether error material – writs issued

Legislation: Migration Act 1958 (Cth) ss 5H, 5J(1)(a), 46A(2), 65, 36(2), 473DC, 473DD, 473EA, Part 7AA

Cases cited:
ABH18 v Minister for Home Affairs [2020] FCA 620

ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439

ACN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 724

AUS17 v Minister for Immigration & Border Protection (2020) 269 CLR 494

AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89

BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34

BYT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 157

Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107

CSR16 v Minister for Immigration and Border Protection [2018] FCA 474

CUZ17 v Minister for Immigration & Anor [2019] FCCA 3074

DYA16 v Minister for Immigration and Citizenship [2025] FCA 864

Kasupene v Minister for Immigration & Citizenship (2008) 49 AAR 77; [2008] FCA 1609

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

Singh v Minister for Home Affairs (2019) 267 FCR 200; [2019] FCAFC 3

Division: Division 2 General Federal Law

Number of paragraphs: 127

Date of last submission/s: 13 August 2025

Date of hearing: 27 July 2025

Place: Melbourne

Counsel for the Applicant: Mr Krohn

Solicitor for the Applicant: Ambi Associates

Solicitor for the First Respondent: Mr Daly; Mills Oakley Lawyers

The Second Respondent: Submitting appearance, save as to costs
ORDERS

MLG 640 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
BFO18

Applicant

AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE FORBES

DATE OF ORDER:

13 AUGUST 2025

THE COURT ORDERS THAT:
1.The decision of the Immigration Assessment Authority dated 21 February 2018 be quashed.
2.A writ in the nature of mandamus be directed to the Administrative Review Tribunal requiring it to determine the applicant’s visa application according to law.
3.The first respondent pay the applicants costs of and incidental to the application, fixed in the sum of $8,371.30.

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 FORBES
INTRODUCTION

The applicant is a citizen of Sri Lanka. He arrived in Australia as an irregular maritime arrival in October 2012.
On 14 November 2017, a delegate of the first respondent (Minister) refused to grant the applicant a Safe Haven Enterprise (Subclass 790) visa (visa). On 21 February 2018, the second respondent, the Immigration Assessment Authority (Authority) affirmed the delegate’s decision.
By an application filed on 14 March 2018, the applicant seeks judicial review of the Authority’s decision. In an amended application for judicial review filed on 8 July 2025, the applicant sought to impugn the Authority’s decision on three grounds of alleged jurisdictional error. These grounds and my findings in relation to each are explained in these reasons.
For the reasons set out below, I am persuaded that the Authority’s decision is affected by jurisdictional error. The decision of the Authority will be quashed and the matter remitted to the Administrative Review Tribunal to be determined according to law.
BACKGROUND
On 7 January 2013, following his arrival in Australia from Sri Lanka, the applicant was interviewed by the Department of Immigration and Border Protection (Department) as an Irregular Maritime Arrival.[1] The applicant was assisted by a Tamil interpreter.
[1] Court Book (CB) 28-47
On 11 December 2015, the applicant was invited by the Department to apply for the visa pursuant to s 46A(2) of the Migration Act 1958 (Cth) (Act).[2]
[2] CB 68-75
On 27 September 2016, the applicant applied for the visa with the assistance of a migration agent.[3] On 7 October 2016, the Department acknowledged receipt of a valid application for the visa.[4]
[3] CB 76
[4] CB 133
Based on a statutory declaration provided to the delegate on or about 27 September 2016 and information provided in his subsequent interview, the applicant’s claims for protection can be broadly summarised as follows:[5]
(a)the applicant worked for the Liberation Tigers of Tamil Eelam (LTTE) between 1994 and 2008 in various capacities, including as a mechanic and diesel operator;
(b)between April and December 2009, the applicant was detained in various IDP camps;
(c)in 2010, after his release from an IDP camp, the applicant was harassed by Sri Lankan security forces four times;
(d)after the applicant’s family fled to India as refugees, the applicant’s uncle reported the applicant’s LTTE affiliation to the authorities in order to take ownership of land which was rightfully the applicant’s;
(e)the applicant left Sri Lanka due to repeated interrogation from the Sri Lankan Army (SLA) and Criminal Investigation Division (CID) causing him to fear for his life; and
(f)the applicant fears harm on return to Sri Lanka on account of his Tamil ethnicity, his residence in a former LTTE controlled area, his perceived links to the LTTE and as a failed Tamil asylum seeker who departed illegally.
[5] CB 124, 180
On 14 November 2017, a delegate of the Minister refused to grant the applicant the visa.[6]
[6] CB 174
In reaching their decision, the delegate gave extensive consideration to the applicant’s claim that he worked with the LTTE in various roles since 1994. In considering the information before the delegate, including country information, the applicant’s interview submissions and Ministerial Direction No. 75 Refusal of protection visas relying on ss 36(1C) and 26(2C)(b), the delegate was not satisfied that the applicant was a refugee as defined by s 5H(1) of the Act. The delegate did not accept that the applicant had been detained in a rehabilitation camp or that he was ever arrested by authorities over his involvement with the LTTE. The delegate also concluded that the applicant had not been reported to the authorities by his uncle.
Relevantly, the delegate found that the applicant was not politically active in Sri Lanka and did not have a political profile warranting future attention by authorities. The delegate found that the applicant’s Tamil ethnicity in Sri Lanka in itself “is not a reason for the applicant to be imputed with an LTTE connection”.[7]
[7] CB 182
The delegate was thus not satisfied that the applicant held a well-founded fear of persecution for reason of his political involvement with the LTTE. The delegate was also not satisfied that the applicant faced a real chance of persecution by Sri Lankan authorities or any other authority within s 5J(1)(a) of the Act. As such, the delegate found that the applicant was not a person to whom Australia has protection obligations as outlined in ss 36(2)(a) or 36(2)(aa) of the Act.[8]
[8] CB 179
Immigration Assessment Authority
On 17 November 2017, the applicant’s matter was referred to the Authority for review pursuant to the fast-track review process prescribed in Part 7AA of the Act.[9] That same day the Authority confirmed the referral in an email which attached a copy of an information sheet and Practice Direction. Relevantly, the Practice Direction[10] states, inter alia, that:
[9] CB 194
[10] CB 196, Practice Direction for Applicants, Representatives and Authorised Recipients
[20]For the purposes of the review, you may provide a written submission on the following:
• why you disagree with the decision of the Department
• any claim or matter that you presented to the Department that was overlooked.
…
[23]We can only consider new information (information that was not before the Department) in very limited circumstances as set out in section 473DD of the Migration Act. We must be satisfied that there are exceptional circumstances to justify considering the new information provided by either you or the Department.
[24]If you want to give us new information, you must also provide an explanation in writing as to why:
• the information could not have been given to the Department before the decision was made, or
• the information is credible personal information which was not previously known and may have affected consideration of your claims, had it been known.
The Practice Direction goes on to set out the format in which any new information should be presented, including requiring that an explanation be given as to why the new information is relevant to the review. The Practice Direction also notes that the Authority may separately invite the applicant to provide new information or to comment on new information that may be adverse to the applicant’s case.
Further, the Practice Direction notes that “Interviews may be held in very limited circumstances in accordance with the provisions set out in the Migration Act…”.
On 28 November 2017, an email was sent to the Authority by Refugee Legal who had agreed to provide limited assistance to the applicant. The email to the Authority attached a statutory declaration of the applicant dated 28 November 2017 which constituted the applicant’s response to the delegate’s decision and included new information for the purposes of s 473DC. In relation to the new information, the email asserts that:
…for the following reasons s 473DD does not operate in these circumstances to preclude the Authority from having regard to it:
•there are exceptional circumstances to justify considering the new information; and
•the new information:
•was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
•is credible personal information which was not previously known by the delegate and, had it been known, may have affected the consideration of the referred applicant’s claims.[11]
[11] CB 205
The applicant’s statutory declaration traversed a number of areas of disagreement with the delegate’s decision. The statutory declaration also provided further explanation about the basis of the applicant’s fears of harm, including new information about the reporting conditions allegedly imposed on the applicant after he was released from Menik Farm (IDP detention), the applicant’s profile as a person of interest to the Sri Lankan authorities, the nature of the applicant’s concerns about his uncle’s conduct and the applicant’s fears of returning to Sri Lanka as a failed asylum seeker.
On 21 February 2018, the Authority decided to affirm the decision under review.[12] In so far as they are relevant to the application for judicial review, the Authority’s reasons are explored later in this judgment.
[12] CB 212
In relation to the new information put before it, the Authority accepted that “some of the claims made by the applicant in his statutory declaration are new claims that were not before the delegate, and are new information”.[13] However, the Authority concluded that s 473DD(b) had not been satisfied by the applicant and as such the new information was unable to be considered. Further, the Authority was not satisfied that there were exceptional circumstances to justify considering the new information.
[13] CB 214
JUDICIAL REVIEW
On 14 March 2018, the applicant applied for judicial review of the Authority’s decision.
By an Amended Application (which included the abandonment of some earlier grounds) the applicant seeks an order that the decision of the Authority be quashed and that a writ of mandamus be issued directing the Authority to determine his visa application according to law. The applicant asserts the following grounds of jurisdictional error:
1. The Authority fell into jurisdictional error in not considering relevant considerations, including claims, integers of claims or material questions of fact or information.
PARTICULARS
(c) The Authority did not consider whether the Applicant's claims, in his statutory declaration dated 28 November 2017, that after his release he "had to sign in to a CID army camp", and when he had to do so, were "credible personal information" within the meaning of sections 473DC and 473DD of the Migration Act 1958 ("the Act"). (Court Book ("CB") 125, [14]; CB 207, [5]-[6]; CB 214-215, [7].)
(d) The Authority did not consider whether the following claims by the Applicant, in his statutory declaration dated 28 November 2017, were "credible personal information" within the meaning of sections 473DC and 473DD of the Act, namely:
(i) that after his departure from Sri Lanka his wife and children had moved to another place, and
(ii) "that despite having relocated, the CID and army travelled there, having been told of their location by the applicant's uncle who was an EPDP member, to ask his wife about the applicant's whereabouts. Having told them that the applicant had gone to Australia, they told her that they would return when the applicant came back and they would take him away for questioning"
(CB 208-209, [10]-[21]; CB 215, [8].)
(e) The Authority did not consider the Applicant's claim that:
"They [the Army and/or the CID] also asked me who my supervisor was and I told them. My supervisor was a former LTTE member who was arrested by the Army, I have never seen or heard from him again. (CB 125, [13])
2. The Authority fell into jurisdictional error in that it was unreasonable or made findings without logically probative material.
PARTICULARS
(c) The Authority did not give the Applicant an interview in spite of being requested to do so in order that the Applicant may respond to concerns by the Minister’s delegate which were not put to the Applicant by the delegate.
(d) Further to particulars (c) and (d) to Ground 1, the authority was unreasonable not to find that there were exceptional circumstances pursuant to section 473DD(a) of the Act to consider the claims referred to in those Particulars. (CB 208-209, [12] -[21]; CB 215, [9]).
(e) The Authority was unreasonable, having been:
“… prepared to accept that the army had, on occasions, although not regularly, interrogated the applicant because of suspicions that he had knowledge of LTTE camps in the area … And that in the course of some of those interrogations, he was beaten and threatened for information” (CB 220, [20]),
then to find:
“I am not satisfied that he was singled out because of any particular interest to authorities at that time” (CB 220, [21]),
and that:
“I consider the applicant’s evidence at the PV interview regarding the claimed monitoring by the army and the army questioning he claimed as a result of his former work for the LTTE and his alleged knowledge of LTTE camps to be contrived for the purpose of embellishing his claim that he was, and remains a person of interest to the authorities. There is no evidence that the authorities continue to have any interest in the applicant after he departed Sri Lanka.” (CB 221, [22]. See also CB 222-227, [25], [35], [39], [46])
3. The Authority fell into jurisdictional error in that it erred in interpreting or applying the law.
PARTICULARS
(c) Further or in the alternative to particular (c) to Ground 1 and particular (a) to this Ground, the Authority erred in interpreting or applying the law in not finding that the applicant’s claims, in his statutory declaration dated 28 November 2017, that after his release he “had to sign in to a CID army camp”, and when he had to do so, were “credible personal information” within the meaning of section 473DD(b)(ii) of the Act.
(d) further or in the alternative to particular (d) to Ground 1, the Authority erred in interpreting or applying the law in not finding that the following claims by the applicant, in his statutory declaration dated 28 November 2017, were “credible personal information” within the meaning of section 473DD(b)(ii) of the Act, namely:
(i) that after his departure from Sri Lanka his wife and children had moved to another place;
and
(ii) “… That despite having relocated, the CID and army travelled there, having been told of their location by the applicant’s uncle who was an EPDP member, to ask his wife about the applicant’s whereabouts. Having told them that the applicant had gone to Australia, they told her that they would return when the applicant came back and they would take him away for questioning.”
(CB 208-209, [10]-[21]; CB 215, [8])
The application for judicial review was heard on 29 July 2025. The applicant was represented by Mr Krohn of counsel, and the Minister was represented by a solicitor advocate, Mr Daly. Prior to the hearing the parties’ representatives filed detailed outlines of submissions, a Court Book (CB) and an agreed bundle of authorities. The parties relied upon their written outlines and developed their submissions orally at the hearing.
Introduction to the grounds
In introducing his arguments in support of the application, Mr Krohn emphasised that the determinative issue in the case was whether the applicant would face a real chance of serious harm or a real risk of significant harm if returned to Sri Lanka. He submitted that a critical issue to be considered in assessing that risk of harm was whether the applicant was of interest to the Sri Lankan authorities (ie army or CID) or had a profile which would likely draw him to their attention upon return.
Mr Krohn noted that the Authority did accept a number of the applicant’s claims. For example, at [15] of its reasons the Authority accepted that “the applicant had some involvement with the LTTE, having undertaken various work for LTTE organisations and members during the period of the Civil War”. Further, at [16] the Authority found that “the applicant was not at any time arrested as an LTTE member, although he was, like many civilians at that time, questioned or monitored for any possible LTTE activity”. However, the Authority did not accept that the applicant was a fighter for the LTTE or a member of that group. At [17] the Authority found that “the applicant’s involvement with the LTTE was low level”. The Authority added that although it was plausible that the applicant had engaged in work for LTTE members or organisations, it was not satisfied that the applicant had any high-level role within the LTTE as a result performing that work.

At [20] of its decision, the Authority accepted the applicant’s claim that he had on occasion been interrogated by the army because of suspicions that he had knowledge about LTTE camps given his work. The Authority also accepted that the applicant had been severely beaten during the course of one such interrogation. The applicant’s account of the beating can be found in his entry interview[14] and at paragraphs [9]-[14] of the statutory declaration provided in support of his protection visa application.
[14] CB 42
Notwithstanding these findings, the Authority ultimately found that the applicant was not a person of interest to the authorities (see reasons at [20], [22], [24], [25] and [35]). The Authority found that the applicant’s level of involvement with persons associated with the LTTE was not such that he would be of continuing interest to the authorities (see reasons at [38], [39] and [46]). Based on these findings the Authority did not find that the applicant had a real chance of suffering harm either:
(a)because of his Tamil ethnicity and/or his origin from a former LTTE controlled area in the Northern Province or because he previously worked in various jobs providing services to the LTTE and was known to have done so by the Sri Lankan authorities ([35], CB 225); or
(b)as a returning asylum seeker who had departed illegally.
Mr Krohn contends that the finding by the Authority that the applicant lacked a profile and was not likely to be of interest to the authorities was central to the Authority’s finding that the applicant did not face a real chance of suffering relevant harm. The applicant submits that the Authority’s engagement (or lack thereof) with his claims and its process of reasoning was so infected by jurisdictional error, that it failed to perform its statutory task. These initial submissions contextualise the grounds on which the applicant relies.
GROUND 1
Following the delegate’s decision, the applicant provided a further statutory declaration to the Authority[15]. Relevantly, the applicant claims that the statutory declaration included:
(a)details of reporting conditions imposed on him by the army when they returned to question him about a month after his release from detention (statutory declaration [5]-[6], CB 207-208) (the reporting conditions information); and
(b)further information about the movement of his wife and children after he had left the country, that the CID and army had travelled to speak to his wife at the place where she had moved, that his uncle was a member the EPDP and that the uncle “dobbed” on the applicant in order to take possession of his family’s land (statutory declaration [10]-[21], CB 208-289) (the uncle information).
[15] CB 207-210
The applicant contends that the Authority failed to consider whether these items of new information was “credible personal information” within the meaning of section 473DD(b)(ii) of the Act. The applicant submits that the Authority was required by section 473DD(b)(ii) to assess and evaluate the new information as to whether it was credible (in the sense of not being inherently unbelievable), personal (being about an identified person), not previously known (to the Minister) and had it been known, was information which may have affected the consideration of the applicants claims.
This first ground of review asserts jurisdictional error in the nature of a failure by the Authority to consider relevant information, including new information conveyed in the applicant’s statutory declaration dated 27 November 2018.
The following uncontroversial statements of legal principle are relevant to the consideration of this Ground.
Requirement to consider all relevant information
It is well-established that the Authority, in conducting a de novo review of the delegate’s decision, was required to consider each of the claims for protection expressly articulated by the applicant and their component integers as well as claims that are not expressly articulated but which clearly emerged on the materials before the Authority: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 at [18].
Understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time. While there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a Court may be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration & Citizenship (2008) 49 AAR 77; [2008] FCA 1609 per Flick J at [21].
A judicial review applicant bears the onus of establishing that a particular matter was not considered: see BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [38] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ. That is not a finding that will be lightly made and must be supported by clear evidence: see Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [48] per Griffiths, White and Bromwich JJ.
The obligation to “consider” a matter is referable to an obligation to engage in an active and intellectual process directed to that matter. The “degree of consideration” required is affected by the centrality of the matter to the issue the decision-maker has to address and its prominence: see Singh v Minister for Home Affairs (2019) 267 FCR 200; [2019] FCAFC 3 at [37].
Consideration of “new information”
In terms of the obligation on the Authority to consider the applicant’s claims and the integers thereof, it is to be recalled that the Authority was required to perform its review pursuant to the fast track review process in Part 7AA of the Act. The practical role of the Authority under Part 7AA was helpfully explained by Judge Kelly in CUZ17 v Minister for Immigration & Anor [2019] FCCA 3074 at [24]-[25] where his Honour stated:
[24]In contrast with a review under Pt 5 or Pt 7 of the Act, the fast track scheme provided by Pt 7AA is a mechanism of limited merits review. Division 3 of Part 7AA variously: provides an exhaustive statement of the natural justice hearing rule respecting a review conducted by the Authority; requires that the Authority should ordinarily conduct its review on the papers; provides for the exceptional, and strictly circumscribed, circumstances in which new information or documents may be sought or employed; and authorises and prescribes the manner in which the Authority may conduct an interview of the applicant or otherwise obtain further information.
[25]In general, the Authority must conduct its review without accepting or requesting new or additional information and without interviewing the applicant. The Authority may, but is under no duty to, get any documents or information that was not before the delegate. Section 473DD proscribes the Authority from considering any new information unless the conditions provided by that section are satisfied.
[citations omitted]
Part 7AA emphasises that there is no duty on the Authority to conduct a hearing or request new information from the applicant[16]. However, the Authority is vested with discretions which enable it to consider additional material and to make relevant enquiries in relevant prescribed circumstances: s 473DC.
[16] See ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
The Authority must not consider new information unless it is satisfied there are exceptional circumstances which justify consideration, and that the new information could not have been provided to the Minister (or delegate), or it is credible personal information, as required by s 473DD of the Act.
Approach to new information
In AUS17 v Minister for Immigration & Border Protection (2020) 269 CLR 494 at [11]-[12] the High Court held that in considering whether new information should be received, the Authority is required to consider:
(a)first, whether the information is information that could not have been provided to the Minister: s 473DD(b)(i); and
(b)whether the information is credible personal information: s 473DD(b)(ii) and then, if either (i) or (ii) is satisfied
(c)whether there are exceptional circumstances to justify considering the new information: s 473DD(a).
Whilst the Authority must engage with the criteria s 473DD(b) first, that engagement need not be formulaic. It will be sufficient if, in a particular case, the court on judicial review is able to infer from the Authority’s reasons that the requisite assessment against both paragraphs (b)(i) and (b)(ii) were undertaken. The question for the court is whether the substance of the criteria prescribed by s 473DD(b) has been considered prior to a consideration of whether “exceptional circumstances” exist for the purposes of s 473DD(a)[17].
[17] APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79] per Markovic J
In CSR16 v Minister for Immigration and Border Protection [2018] FCA 474, Bromberg J stated that properly understood, what constituted “credible” for the purposes of s 473DD(b)(ii) was whether the information provided by the applicant was capable of being believed[18]. His Honour observed that the decision whether to consider new information was anterior to the “deliberative stage” of decision-making. At the anterior stage, s 473DD did not require the Authority to determine whether the proposed new information would actually impact its decision, rather the enquiry was whether it could do so.
[18] CSR16 v Minister for Immigration and Border Protection [2018] FCA 474, per Bromberg J at [42]
This is to be distinguished from the deliberative stage of decision-making where the Authority may substantively consider the new information admitted under s 473DD, along with all other information before it, in reaching findings of fact necessary to determine whether to affirm or remit the decision to refuse the grant of a visa.
In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150 a majority of the Full Court endorsed the approach taken by Bromberg J in CSR16 and found that the Authority could not undertake a “substantively evaluative process” at the anterior phase of decision-making. The decision on whether new information is admitted involves a different assessment and is to be undertaken before the substantive review.
In light of these principles, I now return to consider the applicant’s arguments in support of Ground 1.
The Reporting conditions information
At [5]-[6] of his statutory declaration to the Authority dated 28 November 2017, the applicant claimed that after his release from Menik Farm he was required by the army “to sign into a CID army camp” which was located close to his house. The applicant deposed that he was required to sign in every week and did so for 3 weeks. He was later told that he would have to sign in only when asked to do so. In his statutory declaration the applicant said that the reporting conditions information related to his claim that he was subject to regular patrols by the CID and army.
At [6] of its reasons, the Authority considered that some of the claims made by the applicant in his statutory declaration were new claims that were not before the delegate, and thus constituted new information. However, at [7] of its reasons, the Authority rejected this new information purportedly by reason of the operation of s 473DD, stating:
Firstly, the applicant claims that when he returned home after one month of being released from Menik Farm, the army put a condition on him that he had to sign in a CID army camp located close to his house every week. After the first three weeks he was required to go and sign in whenever they asked him to. The only explanation for now providing this further information is because of the delegates finding that the applicant was not subject to official reporting conditions when he was released from Menik Farm. He gave evidence at his PV interview that he avoided signing at the camp when he was under monitoring. Although it is implicit in this evidence that he was required to sign in whilst at the camp as part of the claimed monitoring he has now provided further details about the frequency and nature of the reporting. These further details are new information. The applicant was given every opportunity in his protection visa (PV) interview to put forward all information in support of his application. He had given evidence about avoiding to sign at the camp, without providing any details as to the conditions of any reporting as he now claims. Given the late stage that the applicant is now seeking to provide further details of his claims reporting conditions, I am not convinced that the applicant is providing a truthful account. If, as he claimed in his PV interview, that he was able to avoid signing at the camp, I have considerable doubts that he was subject to a genuine reporting conditions that were imposed on him. The applicant has not satisfied me as to either of the matters in s 473DD(b). I am therefore unable to consider this new information. Further, in all the circumstances, I am not satisfied that there are exceptional circumstances to justify considering this new information.
The applicant submits that on a fair reading of the Authority’s reasons, the court should conclude that the Authority either misunderstood or did not properly apply s 473DD, and thereby fell into error by failing to consider this new information.
The applicant contends that the Authority’s error is exposed in its findings in relation to the claimed reporting conditions that “I am not convinced that the applicant is providing a truthful account” and its conclusion that “I have considerable doubt that he was subject to any genuine reporting conditions”. Those findings led to the Authority concluding that the applicant had not satisfied it “as to either of the matters in s 473DD(b)”.
The applicant submits that [7] of the Authority’s reasons exposes error in its assessment of new information. The applicant submits that the Authority failed to properly consider the new information because it did not engage with the filtering or screening process for which s 473DD(b)(i) and (ii) were designed. Rather than asking itself whether the new information put forward by the applicant was credible (in the sense of capable of being believed), the applicant contends that the Authority fell into error by impermissibly rejecting the new information based on its determinative assessment that it was not truthful.
Relying on the judgment of Bromberg J in CSR16, the applicant submits that the Authority failed to consider, as a first step, whether the new information was credible personal information. Whether the information was “truthful” or whether the Authority had “considerable doubts” were questions not directed to the issues enlivened by s 473DD(b)(ii).
Notwithstanding the Authority found that it was not satisfied as to “either of the matters in s 473DD(b)” it then went on to add that there were no exceptional circumstances to justify considering the new information.
The consideration of “exceptional circumstances” is a requirement of s 473DD(a) and it is a matter to which the Authority must turn its mind only if it finds that the new information satisfies either s 473DD(b)(i) or (ii). In circumstances where the Authority expressly found that it was not satisfied as to either of the limbs in s 473DD(b), there was no requirement for it to determine whether exceptional circumstances existed.
But in doing so, the applicant submits that the reasons of the Authority expose further error. By moving past the filter in s 473DD(b) and to the consideration of exceptional circumstances under s 473DD(a), the reasons reveal a misunderstanding of the legislation and the relevant statutory task. Alternatively, although the Authority stated that there were no exceptional circumstances to justify considering the new information, there is no explanation as to what circumstances were considered and why they were not regarded as exceptional. Confusingly, the Authority simply found that in all the circumstances there are no exceptional circumstances.
Information regarding the applicant’s uncle
At [10]-[21] of his statutory declaration dated 28 November 2017, the applicant stated:
[10] Within one month of me leaving to travel to Australia, my wife and children moved from Kilinochchi to Puthukkudiyiruppu because they were scared for their safety. They were scared that the CID and army would question and hurt them to find out my whereabouts.
[11]Despite relocating, the CID and army travelled to Puthukkudiyiruppu twice to ask my wife where I was. My wife told them I had gone to Australia and they told her that when I returned they would come and take me away for questioning.
[12]On the first occasion that the CID and army went to question my wife, my uncle, who is my step-mother's brother, was with them. When I found out about this, I became suspicious that he was the one who had told the CID and army where my wife and children had moved to.
[13]I had always known that my uncle was a member of the EPDP and so was affiliated with the army. I did not have any relationship with him when I was in Sri Lanka.
[14]I did not mention my uncle during my entry interview because I was distressed and was not thinking right. Because I hadn't mentioned him before, I didn't mention him in my statement either. At that time, I also didn't understand how important it was in regards to my claim for protection.
[15]During my interview, the case officer asked me what I fear will happen if I go back. At this point, I realized it was important to talk about my fears regarding my uncle reporting me to the authorities if I am forced to return.
[16]My uncle has taken over the land that belongs to me and is living there in a house he has built. The land is in my father's name but because my father fled to India, the land belongs to me.
[17]Because of my uncle's membership of the EPDP, and because he wants to keep the land, he would dob me in to the authorities if I was forced to return to Sri Lanka.
[18]The case officer's decision has been explained to me and I now know that the case officer didn't believe me about my uncle being a member of the EPDP and reporting me to the authorities.
[19]During my interview, the case officer didn't give any indication that he didn't believe me about this. When the case officer asked me what I feared would happen to me upon return, I talked about my uncle and why I feared he would dob me in. The case officer did not ask me any questions about my uncle, he just listened to what I told him and did not comment.
[20]Because at the time of my interview I didn't know the case officer didn't believe me, I never got the chance to respond to these concerns. I request a second interview so that I have the opportunity to respond.
[21]During my interview, the interpreter described my uncle as my father's brother. This is incorrect as he is my step-mother's brother, so it must have been a mistranslation.
At [8] of its reasons, the Authority purported to address this additional information. In doing so, the Authority said:
Secondly, the applicant claims that within one month of having left to travel to Australia, his wife and children moved from Kilinochchi to Puthukkudiyiruppu because they were scared that the CID and army would question and hurt them to find out his whereabouts. Related to this new claim is a further claim that despite having relocated, the CID and army travelled there, having been told of their location by the applicant’s uncle who was an EPDP member, to ask his wife about the applicant’s whereabouts. Having told them that the applicant had gone to Australia, they told her that they would return when the applicant came back and they would take him away for questioning. The applicant has not provided any explanation as to why he had not made these claims earlier, despite them relating to events sometime prior to the delegate’s decision. He did make claims about his uncle being in the EPDP at his PV interview, but did not mention that his uncle had also informed the army and CID where his family were and that he had attended with them to question her over the applicant’s whereabouts. It appears these new claims of continuing enquiries after the applicant’s departure have been contrived to embellish his claims of fear of the army and the CID if he returns to Sri Lanka, and I am not satisfied that they are genuine claims. The applicant has not satisfied me as to either of the matters in s 473DD(b). I am therefore unable to consider this new information. Furthermore, in all the circumstances, I am not satisfied that there are exceptional circumstances to justify considering this new information.

The applicant submits that the Authority again fell into error by failing to consider, with the engagement required by law, the limited question relevant under s 473DD(b)(ii), namely whether the information about the uncle, the wife and the CID was “credible personal information”. The applicant submits that by directing itself to whether the applicant’s claims were genuine, the Authority failed to engage with the s 473DD(b) filtering process as explained in CSR16.
The applicant also says that the error is compounded by the Authority’s finding at [8] that “The applicant has not provided any explanation as to why he had not made these claims earlier, despite them relating to events sometime prior to the delegate’s decision”. The applicant submits that this finding is simply wrong as a good part of paragraphs [10]-[21] of his statutory declaration is directed to that very issue.
The applicant argues that the Authority could not have properly assessed whether the new information was credible personal information for the purposes of s 473DD(b)(ii) without taking into account the explanation he proffered in the statutory declaration. The applicant says that this incorrect finding about there being no explanation was foundational to the Authority’s finding that the applicant’s new claims about continuing enquiries had been “contrived to embellish his claims of fear of the army and the CID if he returns to Sri Lanka”. Again, it reveals a deliberative assessment of the information rather than a screening for “believability”.
As to materiality, the applicant submits that both items of new information were essential to the Authority’s assessment of his claims for protection. The information was relevant and probative of his claims to be of continuing interest to the CID and army and his fears of suffering harm at their hands.
The claim about the supervisor
By particular (e) of ground 1, the applicant contends that the Authority also failed to consider a clearly articulated claim, namely that:
They [the army and or the CID] also asked me who my supervisor was and I told them. My supervisor was a former LTTE member who was arrested by the Army, I have never seen or heard from him again.
In both written and oral submissions, counsel for the applicant argued that this statement identified the applicant as an important source of information for the Sri Lankan authorities and as a person who remained of interest to them for that reason. The applicant submits that the fact his supervisor, once identified as an LTTE member, disappeared and was never seen again, shows the value of information he possessed about LTTE camps and the persons with whom he worked.
The applicant’s complaint is that this claim was clearly articulated and should have been considered because it was directly relevant to the applicant’s profile in the eyes of the Sri Lankan authorities. If the claim had been considered and accepted, it may have added cumulative weight to the Authority’s assessment of risk of harm to the applicant in the event of his return. The applicant submits that the Authority did not consider this claim at all and therefore fell into jurisdictional error.
Minister
The Minister reminded the court that the reasons of administrative decision-makers are not to be construed minutely and finely with an eye keenly attuned to the perception of error. The Minister contends that a beneficial construction should be given to the way in which the Authority expressed itself and that a commonsense and realistic approach should be taken to understanding its reasons as a whole. I take no issue with those statements of principle.
Taking a sensible approach, the Minister submits that reasons reveal that the Authority adopted the correct approach to its consideration of the items of new information and that it was open to the Authority to find that the were not credible personal information for the purposes of s 473DD(b)(ii).
Turning first to the “reporting conditions information”, the Minister submits that it is clear from [7] of the reasons that the information was correctly identified and considered against the relevant tests. In the course of considering the new information on which the applicant wished to rely, the Authority found at [7] that:
·the only explanation for providing the further information was because of the delegate’s finding that the applicant was not subject to official reporting conditions;
·the applicant had already given some evidence about the issue at the protection visa interview;
·the applicant had been given every opportunity at his protection visa interview to put forward all information in support of his application;
·given the late stage at which the applicant was now seeking to provide further details of the claimed reporting conditions, the Authority was not convinced that the applicant was providing a truthful account; and
·it had considerable doubts that the applicant was subject to any genuine reporting conditions.
The Authority concluded that the applicant had not satisfied either of the matters in s 473DD(b) and that it was therefore not open for it to consider the new information. The Minister submits that in light of the findings above, the Authority’s conclusion is unsurprising.
The Minister rejects the applicant’s submission that the Authority engaged in a determinative rather than screening process. The Authority found that it was “not convinced that the applicant was providing a truthful account” and that it had “considerable doubts” regarding the veracity of the new information. The Minister submits that these findings reveal that the Authority engaged in an evaluative consideration of whether the information was credible personal information, in the sense of being capable of being believed. The Minister submits that the Authority’s finding at [7] that “I am not convinced…” as to the truthfulness of the applicant’s account was an expression of reservation rather final determination about the truth of the claim. Although the Authority did not squarely pose the questions it was required to consider for the purposes of s 473DD(b), the Minister submits that the Authority nevertheless discharged the task required of it.
Similarly, in relation to the new information about the applicant’s uncle, the Minister submits that the Authority engaged in an appropriate assessment of whether that constituted credible personal information for the purposes of s 473DD(b)(ii).
Minister submits that on a fair reading of [8] of the reasons, one can readily discern that the Authority did apply the filters required by s 473DD(b)(i) and (ii). First, the Authority noted that there was no explanation for why the claims had not been put to the delegate at the appropriate time, an indication that subsection (b)(i) was considered. Secondly, the Authority’s conclusion that the new claims appeared to have been contrived indicates that the Authority did consider whether the new information was credible personal information within the meaning of subsection (b)(ii) and found that it was not.
As to the applicant’s assertion that the Authority incorrectly found that he offered no explanation for why the claims were not put to the delegate, the Minister submits that finding must be read in context. The Minister submits that the Authority was not making a finding that the applicant offered no explanation at all, rather the reasons should be read to mean that he offered no “reasonable” or “satisfactory” explanation.
In relation to both the new “reporting conditions information” and the “information about the uncle”, the Minister advances an alternative position. The Minister submits that even if the court finds that the Authority did err, the error should not be regarded as material because on the whole of the evidence the Authority would have still arrived at the same outcome. The Minister cited the judgment of Charlesworth J in ABH18 v Minister for Home Affairs [2020] FCA 620 as an example where the Court reached such a conclusion.
The Minister also submits that there is no substance to the applicant’s allegation that the Authority failed to consider his claim of fearing harm due to his profile as a potential informer against the LTTE. As mentioned above, the applicant argued that this claim clearly arose from information he provided to the delegate about an instance where he was interrogated by the army during the course of which he revealed the identity of his supervisor, an LTTE member. In his statutory declaration of 27 September 2016, the applicant claimed that his supervisor was then arrested by the army and was never seen or heard of again.
The Minister makes two submissions in relation to this alleged error. First, the Minister submitted that the Authority was only required to consider claims that are the subject of substantial, clearly articulated argument, or which clearly emerged from the materials. In short, the Minister argues that the claim of fearing harm due to “informer status” was never made or pressed and cannot be said to have clearly emerged. There was, accordingly, no obligation to consider it.
Secondly, the Minister submits that the court should not jump to the conclusion that the claim was not considered. Among the claims considered by the applicant (see the Authority’s reasons at [11]) was that:
In March 2011 the Army interrogated him after they had found an LTTE camp in an area in the [redacted] district as they knew that he had worked in that region and they assumed that the applicant had done the new electrical wiring at that camp for the LTTE, which the applicant denied
The Minister submits that consideration of this claim can be found in [18]-[20] of the Authority’s reasons. There the Authority accepted that the army had, on occasions, although not regularly, interrogated the applicant because of suspicions that he had knowledge of LTTE camps in the area given that he had done electrical wiring work for the LTTE. After considering that claim, the Authority was unconvinced that the army maintained any specific interest in the applicant.
Here, the Minister submits that any claim raised by the applicant regarding his supervisor fell within the broad scope of his claim about having been interrogated by the army about LTTE camps and the work he performed. Whilst accepting that a failure to consider a claim, or an integer of a claim, can give rise to jurisdictional error, the Minister submits that it is unnecessary for the Authority to make a finding on every matter of evidence and that it is sufficient if the Authority has subsumed the claim within findings of greater generality. The Minister submits that is precisely what the Authority did here by noting that the applicant had been occasionally interrogated by the army about his work for the LTTE but finding that he was not of any specific interest to the authorities.
Consideration
In CSR16, Bromberg J stated that properly understood, what constituted “credible” for the purposes of s 473DD(b)(ii) was whether the information provided by the applicant was capable of being believed[19]. In BTW17 a majority of the Full Court endorsed the approach taken by Bromberg J in CSR16 and found that the Authority could not undertake a “substantively evaluative process” at the anterior phase of decision-making. The decision on whether new information is admitted involves a different assessment and is to be undertaken before the substantive review. At the anterior stage, s 473DD did not require the Authority to determine whether the proposed new information would actually impact its decision, rather the enquiry was whether it could do so.
[19] CSR16 v Minister for Immigration and Border Protection [2018] FCA 474, per Bromberg J at [42]
The Minister is correct that the credibility of new information does not fall to be assessed solely by reference to the information itself, and that it would have been permissible for the Authority to have regard to the other information before it in making that assessment[20]. Nevertheless, it is important to bear in mind, as Mortimer and Jackson JJ went on to say in BTW17 at [73], that:
… there comes a point at which such an assessment will go too far, and in reality will equate to, or become indistinguishable from, the Authority’s reasoning on its own – fresh – consideration of the protection visa application. That would not be the correct approach, because that is not the purpose for which the power is conferred.
[20] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159 at [2] (Besanko J), at [72] (Mortimer and Jackson JJ)
Further, in BTW17 their Honours Mortimer and Jackson observed at [76] that:
…in a scheme premised on a review “on the papers”, there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant’s explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa applicant (which would occur in deciding if the new information were “true”). That difficulty is that the Authority is, in substance, taking into account material that is not before it on the review in determining the credibility of the visa applicant. That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority: they cannot be based on extraneous material, which is what “new information” is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 is correct.
In my view the Authority’s decision not to consider the new information about the reporting conditions and about the applicant’s uncle involved the premature substantive rejection of that information rather than a proper assessment of whether it was credible for the purposes of s 473DD(b)(ii). In the case of the reporting conditions information the Authority found in substance that the applicant was not being truthful. I accept that the actual language used by the Authority (ie “I am not convinced”) appears equivocal, but its tone was not. I am satisfied that the Authority regarded the new information as substantively untrue and dismissed it as such.
Similarly, I am of the view that the Authority overstepped the mark and engaged in a substantive rejection of the “uncle information”. The Authority’s conclusion that the information appeared to have been “contrived” is a strong finding that it is false and deliberately so. The reasons do not satisfy me that the Authority asked itself whether the information was capable of being believed – it decided it was false and rejected it on that basis.
In reality, the Authority’s purported evaluation of the new information is indistinguishable from its consideration of the protection visa application. As such it was an error of the type identified in BTW17.
Materiality
The existence of error is not sufficient to establish jurisdictional error. It is also necessary to establish materiality. An error is only material if there is a realistic possibility that the decision in fact made could have been different had the error not occurred: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45] (Bell, Gageler and Keane JJ).
In ABH18 Charlesworth J observed at [35] that:
The Court is concerned to identify how (if at all) the error in the application of the procedural power to consider new information may have affected the ultimate exercise of the Authority’s power to affirm the decision under review under Pt 7AA of the Act. In the ordinary course, an erroneous interpretation or application of s 473DD may be expected to result in the Authority erroneously proceeding on the basis that it is precluded by s 473DD from considering new information. Such an error may be material if consideration of the new information may conceivably have resulted in a more favourable outcome for the review applicant. Whether that is so must turn on the particular circumstances of the case.
The Minister submitted that even if the new information had passed through the “filter” the Authority would inevitably have found the new information lacked credibility, with the result that the failure to consider the criterion in s 473DD(b)(ii) could not have made any difference to the decision. The Minister submits, as he did in ABH18, that the Authority ultimately assessed the claimed events against other material before it and made a substantive assessment that the claimed events had not occurred. It was against the whole of the other review material that the Authority assessed the information as not being believable, albeit not under the procedural framework of s 473DD.
In the recent case of DYA16 v Minister for Immigration and Citizenship [2025] FCA 864, Owens J addressed the question of materiality in similar circumstances:
[30]To assess the materiality of the Authority’s error, it is first necessary to identify with precision the error itself. The arguments of the parties focussed on the failure of the Authority to consider the criterion set out in s 473DD(b)(ii), and, in particular, to consider whether the new information was “credible”.
[31]The meaning of that term was explained in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159 at [75], per Mortimer and Jackson JJ:
As Bromberg J said, “credible” means capable of being believed: it is the decision whether the information has that character, as well as the character of being “personal” to the visa applicant, which is to be made at this procedural stage, for the purpose of deciding what the scope of the review material should be, and whether there should be a departure from the primary rule.
[32]As to whether the error was material, the relevant test was articulated in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [16], per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ:
In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
[33]There is a question as to the correct identification of the “outcome” in relation to which materiality is to be assessed in the context of a failure to comply with s 473DD:
(a)On one view, which finds expression in the decision in DPT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 15 (Colvin J), the question is whether the absence of error could realistically have resulted in the Authority deciding that the new information could be considered (see especially at [52]).
(b)The contrary view, which has been adopted in cases including those collected in AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90 at [80] (Banks-Smith and Jackson JJ), is that the error must be shown to have been material to the Authority’s ultimate decision. Such an approach thus requires the demonstration of a realistic possibility that Authority might have determined that the new information could be considered and that, had it done so, the application as a whole might have been decided differently.
[34]That question remains unresolved (see, e.g., BYT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 157 at [36] (Stewart J); ACN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 724 at [19] (Burley J))…

In my view, it cannot be affirmatively concluded that the Authority would inevitably have determined that the new information lacked credibility at the anterior stage of the analysis called for by s 473DD(b)(ii). There is a realistic possibility that the Authority would have found the new information, even where it was inconsistent with other information, was capable of being believed.
If so, the new information would then have fallen to be considered cumulatively with all the other information before the Authority. It is possible that the same outcome on the review would have been reached, but I cannot confidently say that would be so. In my view had the error not occurred, there is at least a realistic possibility of a different outcome and therefore the error should be regarded as material.
For the foregoing reasons, I consider that the Authority’s error in failing to address the criterion in s 473DD(b)(ii) was material, and thus amounted to jurisdictional error. The applicant succeeds on Ground 1.
For completeness, I am not persuaded that particular (e) of Ground 1 is made out. The applicant’s claim that he is of interest to the Sri Lankan authorities because he is an “LTTE informer” was not clearly articulated nor is it a claim which can reasonably be said to have arisen on the material before the Authority. In my view, the applicant’s identification of an individual who was then arrested and never seen again, was evidence which pertained to the fact that he had been interrogated but it was not in and of itself a claim that he feared harm as an informer.
The Authority was not required to consider any claim which was not expressly articulated and which did not clearly emerge on the materials. The fact that a claim might be said to arise from materials is not enough[21].
[21] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [68]
By reason of my findings in relation to Ground 1, the applicant is entitled to the relief he seeks. While it is not strictly necessary to determine the remaining grounds of review, I will do so as each was fully argued before me.
GROUND 2
By this ground the applicant seeks to impugn the Authority’s decision on the basis that it made findings which are so illogical or lacking in probative foundation that no reasonable decision-maker could have so acted[22].
[22] Minister for Immigration and Citizenship v Li [2013] HCA 18 at [68]
The applicant submits that given the Authority’s obligation under s 473EA of the Act to give a written statement setting out its reasons, the obligation on the Authority to act reasonably extends not only to its final decision but to its exercise of discretions, including those under ss 473DC and 473DD.
The applicant points to three instances where the Authority unreasonably failed to discharge a statutory task.
Failure to interview the applicant
In his statutory declaration to the Authority dated 28 November 2017, the applicant requested an interview with the Authority so that he could respond to concerns by the Minister’s delegate which he believes were not properly put to him by the delegate.
While the applicant accepts that there is no general duty for the Authority to get new information, including at an interview, he submits that the discretion as to whether or not to do so must be exercised reasonably. The applicant submits that in determining whether the Authority was unreasonable not to grant an interview, the statutory context is important. Although Part 7AA of the Act prescribes a tight regime for the acceptance of new information, the applicant submits that the substantive obligation to assess his claims pursuant to the refugee and complementary protection criteria under ss 32(2(a) and (2)(aa) of the Act remains paramount.
The applicant submits that the information contained in his statutory declaration about his uncle’s desire for the family land, his information against the applicant’s wife and the visits of the CID after he left Sri Lanka are “gravely supportive of the application for protection”[23]. It is submitted that the refusal to provide an interview to discuss information which potentially bears upon the substantive questions to be determined by the Authority should, at least in this case, be found to be an unreasonable exercise of discretion.
[23] The applicant’s Outline of Submissions filed on 8 July 2025 at [48]
Unreasonable failure to find exceptional circumstances
The applicant also alleges that because of the gravity and potentially critical nature of the new information referred to above, the Authority was unreasonable not to find that there were exceptional circumstances pursuant to s 473DD(a) to consider the claims referred to in that information.
The applicant submits that the Authority’s unreasonable failure to find exceptional circumstances was informed by its error in the application of s 473DD(b). He submits that if the Authority had properly performed its statutory task of filtering the new information as a preliminary step, it would have found that the new information was credible personal information and would then have turned its mind to exceptional circumstances separately. By failing to consider exceptional circumstances in proper sequence, the Authority fell into error.
Findings about the applicant’s profile
The applicant also submits that the Authority acted unreasonably in making inconsistent findings about the applicant’s profile with the Sri Lankan authorities. Ultimately, the Authority found that the applicant’s profile was not such as to expose him to a real risk of suffering relevant harm were he to return to Sri Lanka. However, by reason of inconsistencies in its findings and reasoning, the applicant submits that the Authority lacked a logically probative basis for that ultimate conclusion.
The applicant says that the inconsistencies are exposed in the reasons at paragraphs [20]-[22]. At [20] the Authority accepted that the army had on occasions interrogated the applicant because of suspicions that he had knowledge of LTTE camps and that in the course of some of those interrogations he was beaten and threatened for information. At [21] the Authority said it was not satisfied that the applicant had been singled out because of any particular interest to the Sri Lankan authorities at that time. The Authority then, at [22] rejected the applicant’s evidence that he had been monitored by the army and questioned as a result of his former work for the LTTE and his knowledge of LTTE camps. The Authority found that evidence to be contrived for the purpose of embellishing his claim to be a person of interest to the authorities.
Fundamentally, the applicant submits that the Authority could not reasonably have reached the conclusion at [22] given its acceptance of his evidence that he had been interrogated on occasions by the army. The applicant submits that the rejection of that evidence is all the more remarkable for the fact that the Authority accepted his evidence about having been beaten to the point of requiring surgery.
Minister
The Minister submits that the Authority considered the applicant’s request for an interview in detail at [9] of its reasons. In its decision, the Authority noted that it has the discretion to conduct an interview in limited circumstances, but concluded that the applicant had already had every opportunity to present his claims and all supporting evidence and was therefore not satisfied an interview was required. The Minister submits that this was an orthodox and reasonable exercise of discretion, having regard to the purpose of limited review under Part 7AA of the Act. The Minister submits that the test for unreasonableness is a stringent one and that to make out the ground the applicant needs to show that the discretion was abused.
As to the applicant’s contention that the Authority was unreasonable not to find that exceptional circumstances applied pursuant to s 473DD(a), the Minister relies upon the reasons given by the Authority at [7] and [8]. In each of those paragraphs the Authority concluded that the applicant’s new information did not satisfy s 473DD(b), which the Minister contends should be read to mean that the new information did not satisfy either limb. The Minister submits the Authority was not required to consider whether exceptional circumstances existed to warrant considering the new information, but it did so and found they did not - a finding which was open to the Authority for the reasons it gave.
The Minister also rejects the applicant’s assertion that the Authority engaged in unreasonableness by making inconsistent and irreconcilable findings at paragraphs [20], [21] and [22] as detailed above. The Minister submits that the applicant is seeking to find inconsistencies by adopting a strained reading of those paragraphs in complete isolation from the rest of the reasons.
The Minister submits that the Authority’s findings are not internally inconsistent, let alone unreasonable. The Authority noted that the applicant was occasionally, but not regularly, interrogated because of suspicions he may have had knowledge of LTTE camps in the area. The conclusion at [21] that he had not been singled out because of any particular interest to the authorities is consistent with their occasional questioning.
Legal principles
The requirement that a statutory power be exercised within the bounds of reasonableness is an implied condition of the statutory conferral of the power: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [53] (Gageler J), [80] (Nettle and Gordon JJ) and [131] (Edelman J). The precise content of that which is required must be determined as a matter of statutory construction of the relevant provisions. Part of that process will involve a consideration of the nature of the repository of the power: SZVFW at [51]‑[53] (Gageler J), [84] (Nettle and Gordon JJ) and [134]‑[135] (Edelman J).
Illogicality, irrationality or legal unreasonableness in a decision maker’s ultimate conclusion or the reasons for an administrative decision may also establish jurisdictional error: Minister for Immigration and Citizenship v SZMDS(2010) 240 CLR 611; [2010] HCA 16 at [132] (Crennan and Bell JJ).
A finding of legal unreasonableness will invariably be fact dependent and requires careful evaluation of the evidence: SZVFW at [84]. Similarly, the question whether information or evidence is inconsistent, the extent to which it is inconsistent, and the consequences for decision-making or fact-finding as a result, will usually call for careful analysis (see, e.g., ASB17 v Minister for Home Affairs (2019) 268 FCR 271; [2019] FCAFC 38 at [42]-[44] (Griffiths, Mortimer and Steward JJ)).
In all cases alleging these species of jurisdictional error, whether it be alleged unreasonableness, illogicality or irrationality, the bar for establishing error is high. It is not sufficient to show that the decision or the exercise of discretion is one in respect of which reasonable minds might differ: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148] (Robertson J).
Consideration
Statutory context frames the boundaries of reasonableness. The fast-track review scheme set out in Part 7AA of the Act does not afford the applicant a right to a hearing or interview. Subject to exceptions, the Authority is primarily required to review the delegate’s decision on the materials that were before the delegate, without accepting or requesting new information and without interviewing the referred applicant.
Section 473DC(3) authorises the Authority to invite a person to give new information in writing or at an interview, but there is no duty on the Authority to afford a visa applicant that opportunity. Although any discretion under s 473DC is subject to the implied condition that it must be exercised reasonably, it is well-established that the Authority is not required to give reasons for the exercise or non-exercise of such a procedural power[24]. Furthermore, any failure in reasons to mention the discretion to obtain additional information under s 473DC cannot support the drawing of an inference that the Authority did not consider exercising it.[25]
[24] BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [38]-[40]
[25] BVD17 at [16], [40]
I am not persuaded that the Authority engaged in legal unreasonableness by exercising its discretion not to grant the applicant an interview. The applicant did not have a right to an interview just because he requested one. The applicant was afforded an opportunity to respond to concerns by the Minister’s delegate and he took that opportunity by providing his statutory declaration of 28 November 2017. Further, this is not a case where the request for an interview went unnoticed. The Authority did consider the request at [9] of its reasons and decided not to exercise its discretion. The Authority was not required to exercise its discretion simply because the applicant would have liked to have said more about his claims. In deciding whether the discretion should be exercised, the Authority was entitled to have regard to the information already available to it. In the context of a Part 7AA fast track review the decision not to provide the applicant an interview was an exercise of discretion which does not come close to the threshold required to establish legal unreasonableness.
I take a different view in relation to the Authority’s failure to properly consider whether there were exceptional circumstances pursuant to s 473DD(a) to consider the “reporting conditions” new information and the new information about the applicant’s uncle. As I have explained in relation to Ground 1, the Authority fell into jurisdictional error by failing to properly engage with s 473DD(b)(i) and (ii). That error, in my view, has the necessary consequence that the Authority’s purported engagement with s 473DD(a) was unreasonable.
It is well established that the conditions in s 473DD(a) and (b) are cumulative: both must be satisfied before the Authority can consider the new information[26]. Accordingly, a decision about whether or not exceptional circumstances exist under s 473DD(a) may be materially informed by the Authority’s findings in relation to the filtering criteria in s 473DD(b)(i) and (ii). For example, the explanation given by an applicant as to why certain information was not provided to the delegate may, itself, constitute exceptional circumstances requiring its consideration. Another case might be where the information is so probative of an issue in dispute that exceptional circumstances compel that it be received.
[26] Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [31] (Gageler, Keane and Nettle JJ).
In the current case, the failure by the Authority to properly engage with the assessment process in s 473DD(b) impinged on the Authority’s assessment of whether exceptional circumstances existed under s 473DD(a). I agree with the applicant that if the Authority had properly performed its statutory task of filtering the new information as a preliminary step, it may found that the new information was credible personal information and would then have turned its mind to exceptional circumstances separately. The unreasonable failure to consider exceptional circumstances was the consequence of the jurisdictional error found in Ground 1.
Finally, in relation to this Ground 2, I do not accept the applicant’s submissions in relation to the alleged inconsistencies in paragraphs [20]-[22] of the Authority’s reasons. I am not persuaded that the conclusion at [21] that the applicant was not singled out because of any particular interest to the authorities and at [22] that he was not a person of any interest to the authorities when he departed Sri Lanka are illogical, unreasonable or lacking any probative foundation.
The Authority was entitled to inform itself having regard to all of the information before it. The applicant had never been arrested as an LTTE member and save for performing some work for them, his involvement with the LTTE was low level. The Authority rejected his claim of having engaged in a few days fighting as a combatant. As to his claims of being interrogated, the Authority found that it had occurred occasionally, but not regularly. The Authority also found that the experience of being monitored and harassed was typical of what many Tamils experienced in the aftermath of the civil war.
The notion of a person being of “interest” to authorities is a relative assessment. In my view, the Authority’s conclusions at [21] and [22] were not that the applicant is of no interest. Read fairly and as a whole, the Authority’s findings are that the applicant is not of a particular notoriety which elevates him above the broader cohort of persons who experience monitoring, interrogation and possible harassment. I do not consider the Authority’s findings to involve extreme illogicality or irrationality.
In light of the foregoing paragraphs, I am persuaded that the Authority acted unreasonably in finding that there were no exceptional circumstances to warrant consideration of new information. The Authority made that finding following its misapplication of s 473DD(b). Ground 2(d) is made out.
GROUND 3
By this ground the applicant alleges, in the alternative to particulars (c) and (d) of ground 1, that the Authority misinterpreted and failed to properly apply s 473DD(b)(ii) by not finding that the new information was “credible personal information”. Accordingly, the failure by the Authority to properly understand and apply the law led to material error.
The Minister accepts that Ground 3 of the application is a reformulation of the applicant’s complaint about the Authority’s lack of engagement with s 473DD(b)(ii). As previously mentioned, the Minister contends that the Authority understood the operation of the relevant provision and demonstrated its understanding in its reasons at [7] and [8].
Consideration
It is not necessary for me to rehearse the arguments advanced by the parties in relation to Grounds 1 and 2 above. Ground 3 is a reformulation which seeks to characterise the errors pleaded in those grounds as a different species of jurisdictional error, namely a misunderstanding of the law.
For the reasons set out above, I am satisfied that this ground is made out. The Authority’s flawed engagement with s 473DD(b)(ii) reflects a misunderstanding or erroneous construction of the law, which was material to the assessment of the applicants claims.
DISPOSITION
I have concluded that the decision of the Authority was infected by jurisdictional error. The applicant is entitled to the relief he seeks.
I will hear the parties on costs.

I certify that the preceding one hundred and twenty-seven (127) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes.
Associate:
Dated: 13 August 2025

File number:	MLG 640 of 2018
Judgment of:	JUDGE FORBES
Date of judgment:	13 August 2025
Catchwords:	MIGRATION – Protection visa refusal – judicial review of decision of Immigration Assessment Authority – suspected political group involvement – where Authority decided not to consider new information – where Authority found applicant’s political involvement low-level – no real chance of harm found – whether new information was credible personal information – whether Authority misunderstood or misapplied s 473DD – error established – whether error material – writs issued
Legislation:	Migration Act 1958 (Cth) ss 5H, 5J(1)(a), 46A(2), 65, 36(2), 473DC, 473DD, 473EA, Part 7AA
Cases cited:	ABH18 v Minister for Home Affairs [2020] FCA 620 ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 ACN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 724 AUS17 v Minister for Immigration & Border Protection (2020) 269 CLR 494 AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 BYT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 157 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 CUZ17 v Minister for Immigration & Anor [2019] FCCA 3074 DYA16 v Minister for Immigration and Citizenship [2025] FCA 864 Kasupene v Minister for Immigration & Citizenship (2008) 49 AAR 77; [2008] FCA 1609 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 Singh v Minister for Home Affairs (2019) 267 FCR 200; [2019] FCAFC 3
Division:	Division 2 General Federal Law
Number of paragraphs:	127
Date of last submission/s:	13 August 2025
Date of hearing:	27 July 2025
Place:	Melbourne
Counsel for the Applicant:	Mr Krohn
Solicitor for the Applicant:	Ambi Associates
Solicitor for the First Respondent:	Mr Daly; Mills Oakley Lawyers
The Second Respondent:	Submitting appearance, save as to costs

MLG 640 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	BFO18 Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE REVIEW TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE FORBES
DATE OF ORDER:	13 AUGUST 2025