BGF18 v Minister for Immigration and Citizenship

Case •

[2025] FedCFamC2G 1410

•

1 September 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BGF18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1410

File number: MLG 646 of 2018
Judgment of: JUDGE GOSTENCNIK
Date of judgment: 1 September 2025
Catchwords: MIGRATION – Safe haven enterprise (subclass 790) visa – judicial review – decision of the former Immigration Assessment Authority (IAA) – where IAA affirmed decision of delegate of the first respondent refusing the applicant a visa – whether IAA’s decision attended by jurisdictional error – IAA’s decision not attended by jurisdictional error – application for judicial review dismissed
Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 214(3)

Migration Act 1958 (Cth) ss 5H(1), 36(2), 36(2)(a), 36(2)(aa), pt 7AA, 473CB, 473CC(1), 473DC

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)

Cases cited:

ADH18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1371

BJB16 v Minister for Immigration and Border Protection [2018] FCAFC 49, 260 FCR 116

BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169, 253 FCR 448

BNB17 v Minister for Immigration & Border Protection [2020] FCA 304

Craig v South Australia [1995] HCA 58, 184 CLR 163

DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12, 258 FCR 551

FQD17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 101

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 98 ALJR 610

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, 253 FCR 475

NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176

Oshlack v Richmond River Council [1998] HCA 11, 193 CLR 72

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law
Number of paragraphs: 45
Date of last submission/s: 29 July 2025
Date of hearing: 12 August 2025
Place: Melbourne
Counsel for the Applicant: The applicant appeared in person
Counsel for the First Respondent:

Ms S Roeger
Solicitors for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: Submitting appearance, save as to costs

ORDERS

MLG 646 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

BGF18

Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE GOSTENCNIK

DATE OF ORDER:

1 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.The applicant’s application for judicial review made on 15 March 2018 is dismissed.

2.The applicant pay the first respondent’s costs 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 24.04(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 Gostencnik

INTRODUCTION

  1. By an application lodged on 15 March 2018, the applicant applies for judicial review of a decision of the former Immigration Assessment Authority (IAA) made on 19 February 2018, affirming a decision of a delegate of the (then) Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refusing the applicant a protection visa in December 2017.

  2. For the reasons explained below, the application will be dismissed with costs.

    BACKGROUND

  3. The applicant is a Sri Lankan citizen of Tamil ethnicity, who arrived in Australia on 10 October 2012 as an unauthorised maritime arrival. On 16 December 2016, the applicant applied for a Safe Haven Enterprise (subclass 790) visa (SHEV) with the assistance of a migration agent, and enclosed with that application, inter alia, a statement dated 13 December 2016 which set out his claims for protection.

  4. The applicant claimed to fear persecution because of his political associations and his ethnicity. The applicant alleges that when he was about 17 or 18 years old, he lived with a distant relative (J), who introduced him to the ‘plight’ of Tamils and the Liberation Tigers of Tamil Eelam (LTTE). The applicant said that J was a former member of the LTTE, and at the time was a member of the Tamil Makkal Viduthalai Pulikal (TMVP) and a member of the local council. The applicant worked with J, and alleged that during the 2008-2009 Sri Lankan civil war, J used his influence and position to assist displaced persons, including Tamil militants. The applicant worked with J during that time, and his duties included assisting displaced militants. He says that government military forces investigated he and J’s activities, and the applicant was himself interviewed by the investigating military officers. The applicant claimed to have been interrogated and beaten, then upon his release, to have fled with his family to another part of Sri Lanka. The applicant was subsequently contacted by J and informed that the military were investigating J and others involved in TMVP and planned to kill people associated with the incidents they were investigating. The applicant claimed that J was kidnapped in Sri Lanka and has not been heard from since. The applicant claimed that he fled to the United Arab Emirates (UAE) and attempted to return to Sri Lanka in early 2012. The applicant claimed that in August or September 2012, Sri Lankan authorities visited his home, but he evaded detection. The applicant claimed to fear that he would be killed if located by the Sri Lankan authorities, because of his involvement with J and imputed association with the LTTE.

  5. The (then) Department of Immigration and Border Protection acknowledged receipt of the application on 9 February 2017, and by letter dated 25 September 2017 invited the applicant to attend an interview before the Department to discuss his visa application and claims, scheduled for 16 October 2017. That letter was transmitted by email to the applicant’s migration agent and enclosed an ‘important information about your Protection visa interview’ factsheet.

  6. On 16 October 2017, the applicant attended an interview with the Department to discuss his protection visa application.

  7. On 31 October 2017, the applicant’s migration agent provided further submissions to the Department detailing further information in relation to the applicant’s claims, contending that he was in fact a person in respect of whom Australia had protection obligations under s 36(2) of the Migration Act 1958 (Cth) (Act).[1] The statement also addressed concerns identified by the delegate during the department interview (SHEV interview).

    [1] Unless otherwise specified or the context otherwise requires, any reference to the Act is a reference to the Act as it was then in force.

  8. The applicant’s submissions to the delegate are not recounted in full, but by those submissions, the applicant contends that he feared persecution on the basis of his race or ethnicity as a Tamil originating from the East of Sri Lanka, and because of his actual or imputed political opinion as a supporter of the LTTE, and because of his membership of a particular social group, being a failed asylum seeker returning from a western country. In relation to the claims regarding his political opinion, the applicant submitted that he had supplied the LTTE with food, groceries and clothes, he assisted the LTTE to remain hidden in the jungle of Amaparai, and he recruited two of his friends to the LTTE. The applicant said in that statement he feared serious harm amounting to persecution in the form of ongoing harassment, abduction, detention, torture, cruel inhuman treatment or punishment, and/or loss of life and liberty. The relevant harm was feared from the Sri Lankan Army, a paramilitary organisation known as the ‘Karuna’ group by which the applicant claimed to have been interrogated, the Criminal Investigation Department, the Terrorist Investigation Department and other government and paramilitary groups.

  9. The applicant also advanced submissions and evidence addressing the concerns identified by the delegate at the interview. In relation to the arrival interview and SHEV application, the applicant contended that his credibility should not be impugned solely because he did not reveal certain incidents in his entry interview on 26 October 2012. The applicant submitted that in the circumstances he, as a traumatized man suffering mental health issues and being asked to give his life history, could not have been expected to recall and recount every relevant detail in the 1 hour and 12-minute interview. The applicant noted the numerous matters he was required to recount and give evidence in relation to during the entry interview. He says that even if he were not in a foreign country, traumatised, and distrustful of authority, he still would not have been able to relay the quantity of personal information required in the time provided.

  10. On 20 December 2017, the Department refused to grant the applicant a SHEV, notifying him by letter on the same date, transmitted by email to his migration agent and enclosing a copy of the delegate’s decision record. The letter notified the applicant that the decision had been referred to the IAA for review under Pt 7AA of the Act and set out information regarding the IAA review process.

    Delegate’s decision

  11. The decision record set out the delegate’s engagement and consideration of the applicant’s claims and evidence and findings in relation thereto. The decision record discloses that the delegate was not satisfied that the applicant was a person in respect of whom Australia owed protection obligations as outlined in s 36(2)(a) or s 36(2)(aa), and did not satisfy s 5H(1) of the Act.

  12. In relation to the applicant’s real or imputed political association with the LTTE, the decision record notes that the delegate had regard to the country information set out in the 2015 Country Information Report for Sri Lanka produced by the Department of Foreign Affairs and Trade, and further country information from the United Kingdom Home Office, noting that the risk of prosecution or detention to persons associated with the LTTE had decreased since the Sri Lankan civil war, and which information indicated that in general, a person who evidences past membership – unless they had a significant role in relation to post-conflict separatism or appear on an airport ‘stop’ list – would not warrant international protection. The delegate found that the chance of being imputed with an LTTE connection for reasons of the applicant’s Tamil ethnicity was remote, and noting the applicant was not politically active and did not have a political profile, the applicant being a Tamil was not sufficient to impute an association with the LTTE.

  13. As to the chance of harm for being a failed asylum seeker who departed illegally, the delegate referred to the country information and, noting that the applicant was not of interest to the Sri Lankan government for any reason when he left the country, found that the applicant did not have a well-founded fear of persecution for being a Tamil from a previously LTTE-controlled area.

  14. As to the claim to have been investigated by the Karuna group, the delegate noted that the organisation no longer operated as an organised paramilitary group acting with impunity, and that the (then) current government of Sri Lanka was willing to pursue and prosecute persons associated with the Karuna group.

  15. The delegate did not accept that the applicant had worked for a political party, nor his claim that he had been interrogated by the Karuna group.

  16. The delegate rejected the applicant’s claim to have a well-founded fear of persecution for any of the above reasons. The delegate considered whether the applicant would nonetheless attract protection under s 36(2)(aa), but found that none of the claims made disclosed a real risk that the applicant would suffer significant harm.

    IAA REVIEW

  17. On 22 December 2017, the IAA wrote to the applicant, acknowledging that it had received a referral of the matter, and indicating that it would decide the matter on the material that the Department had provided, unless it decided to receive any new information. The letter enclosed an IAA practice direction setting out information relevant to the conduct of a review by the IAA.

  18. On 19 February 2018, the IAA notified the applicant that it had decided to affirm the decision under review and enclosed a copy of its Statement of Decision and Reasons (Decision).

    IAA DECISION AND REASONS

  19. The IAA noted at [3]–[4] that its decision was made based on the material referred to it by the Secretary under s 473CB of the Act and that it had not obtained or received any further information. It summarised the applicant’s claims at [5], considered his claims and evidence at [6]–[27], turning thereafter to assess whether the applicant had a well-founded fear of persecution and satisfied the definition of refugee, or fell within the complementary protection obligations, concluding at [44] and [49] respectively that the applicant did not have a well-founded fear of persecution, and did not face a real risk of significant harm if returned to Sri Lanka.

  20. The IAA summarised the applicant’s claims as follows:

    ·in about 2006 or 2007 when the applicant was about 17 or 18 years old, he lived with his family and a distant relative (J), who had been a member of the LTTE but was at that time affiliated with the TMVP. J was a candidate in the 2008 local council elections and the applicant helped his election campaign;

    ·the applicant sometimes met with J in remote locations to avoid the authorities and assisted the LTTE to remain hidden in the jungle, although he only met the LTTE once through J;

    ·the applicant assisted J in supporting internally displaced Tamil persons living in the local area. The displaced persons included LTTE militants;

    ·the applicant recruited two of his friends for the LTTE, one of whom provided intelligence to the LTTE which resulted in an attack against the Karuna. That friend had been abducted by the Sri Lankan army in 2012;

    ·in March 2009, the applicant was required to attend the Karuna office for questioning in relation to his activities with J and their support of internally displaced persons. He says he was questioned, beaten and detained for a day;

    ·he worked for the Sughanthira Party in 2009;

    ·in August 2009, J contacted him to say the Karuna group was planning to attack and kill people whom they had questioned in March 2009, including the applicant. The applicant fled Sri Lanka to the UAE in October 2009;

    ·in 2010, the applicant was informed that J had been kidnapped by the Sri Lankan army, and J had not been heard from since;

    ·the applicant returned to Sri Lanka in March 2012, and in July 2012 two men came to his house asking for him – three weeks later, four or five men came to his house, but before they entered, his mother alerted him, and he escaped to a neighbour’s house. The men entered the house and searched for evidence that the applicant lived there, and threatened his family. The applicant left Sri Lanka with his family in late 2012;

    ·three months after he left Sri Lanka, unknown men visited his father’s shop and asked about him;

    ·his fear extends to the whole of Sri Lanka because he fears harm from the Sri Lankan authorities.

  21. The IAA noted at [9] that it was not satisfied J introduced the applicant to the LTTE and commented that it was unclear why J would introduce the applicant to the LTTE given that J was, at the relevant time, a member of the TMVP, which were an anti-LTTE organisation. The IAA noted the lack of specific details provided by the applicant in relation to the purported meetings in remote locations, including the reasons for conducting them in remote locations, especially when J was campaigning at the same time to win a seat on the local council.

  22. The IAA made the following comments and findings about the applicant’s claims:

    ·it was satisfied that the applicant had lived with J: Decision at [7];

    ·it was not satisfied that J had introduced the applicant to the LTTE or had met with the applicant in remote locations, noting at [9] that J was a member of the TMVP, which was anti-LTTE;

    ·it accepted that the applicant learned about Tamil politics from J after J had left the LTTE and joined the TMVP, but did not accept that the applicant helped LTTE cadres to remain hidden in the jungle: at [10];

    ·it accepted the applicant’s claims that the applicant assisted J to campaign for election on behalf of the TMVP: at [11];

    ·it did not consider plausible that the applicant would recruit two friends to the LTTE in circumstances where he had not given details of the method or timing of recruitment or his reasons for doing so, and where his claimed association with the LTTE was through J, who at the time the applicant began living with J, had already left the LTTE and was a member of the anti-LTTE group, the TMVP: at [13];

    ·it noted the applicant had advanced no claims that he ever came to the attention of the authorities because of his claimed friendships with the two people he ‘recruited’, nor that the friendships were known to the authorities: at [15];

    ·as to the applicant’s claim that his activities came to the attention of the government in early 2009, and that in March 2009 the government sent the Karuna group to investigate, as a result of which he was questioned about his relationship with J and the LTTE and his providing support to internally displaced persons, and that he was beaten and detained as a result – the IAA found it plausible that this occurred and accepted that the applicant was questioned and beaten by the Karuna group as he claimed in March 2009: at [17];

    ·it accepted that the Karuna group investigated the internally displaced persons support group, that the applicant’s parents moved house in March 2009 because of the investigation: at [19];

    ·it accepted his claim that the authorities conducted ‘round-ups’ of his village and questioned the residents of the village as he described, and noted that the applicant had adduced no information alleging that he was personally targeted by the authorities during the round-ups: at [20];

    ·it did not accept that the applicant was contacted by J in late 2009 warning him of an impending attack from the Karuna group, or that the warning caused him to quickly make plans to depart Sri Lanka: at [21]; noting that the applicant had provided no information about the nature and timing of the call from J, or any explanation as to why the Karuna group would be planning to kill him some seven or eight months after they questioned and released him;

    ·it noted that the applicant obtained a Sri Lankan passport in April 2009 and departed Sri Lanka in October 2009, but did not face any difficulties departing: at [22];

    ·it accepted that J was abducted in 2010 as claimed, but placed no weight on the letter provided by the applicant regarding the disappearance: at [23];

    ·it noted that in his entry interview, the applicant claimed that upon his return to Sri Lanka he was visited twice by unknown men. In his SHEV interview, the applicant only mentioned the second occasion. The IAA was not satisfied that the applicant was of any interest to the authorities at the time he departed Sri Lanka or the time he returned and ‘[could] see no reason why they might have been looking for him after he returned home’. The IAA said that the applicant has advanced no credible claims that there were any negative consequences for his family, noting the applicant claimed that a group of men visited his father’s shop after the applicant came to Australia, but did not accept that the unknown men visited his father’s shop as claimed: at [26];

    ·it noted that the applicant’s evidence regarding his political activities was ‘somewhat confusing’ and accepted that he assisted J and the TMVP before he left for the UAE but noted the applicant had stated in his entry interview that he worked for the Sri Lakan Sughanthira Party (SIP) during this time. He stated in his SHEV application that he was affiliated with the SIP before fleeing Sri Lanka, and when questioned by the delegate, stated he undertook political work before his departure for the UAE. He said that any inconsistencies may have been caused by his confusion and tiredness when he arrived and because of interpreter errors in the arrival interview. The IAA was not satisfied that the applicant worked with the SIP, but found that he assisted and supported the TMVP before he left for the UAE: at [27].

  1. Assessing whether the applicant satisfied the refugee criteria in s 5H(1) of the Act, the IAA found that the applicant’s assistance to the TMVP was a minor and informal role: Decision at [29]; and accepted that he was beaten and questioned for a day by the Karuna group, but noted that neither the assistance provided in connection with J, or his relationship with J, presented ongoing adverse consequences after 2009.

  2. The IAA was satisfied that the applicant’s work with the TMVP in supporting internally displaced persons was of a very low-level and did not result in the authorities imputing him with pro-LTTE sympathies after 2009: Decision at [34]. It noted that except for one distant relative who later joined the pro-government TMVP, none of the applicant’s family were associated with the LTTE. The IAA was therefore not satisfied that the applicant would be viewed as a Tamil activist or person involved in Tamil separatist activities.

  3. The IAA was not satisfied that the applicant faced a real chance of harm because he was a Tamil who had supported Tamil internally displaced persons in the past, or because of his relationship with J, his assistance to the TMVP, his family origins in LTTE-controlled regions, or for any other reason, if he returned to Sri Lanka: Decision at [35].

  4. In relation to his status as a failed asylum seeker, the IAA was satisfied that there was a real chance the applicant would be detained at the airport for processing, but on the basis of the country information, reasoned that the applicant would not be detained for more than a few days, and the questioning and detention of the applicant in the circumstances would not amount to serious harm: Decision at [39]. The IAA found that there was no real chance that the applicant would suffer persecution from the Sri Lankan authorities for being a returning Tamil asylum seeker from Australia: at [42].

  5. The IAA concluded that the applicant did not satisfy the definition of refugee in s 5H(1) and did not meet the requirements under s 36(2)(a).

  6. Turning to assess whether the applicant nonetheless satisfied s 36(2)(aa) of the Act, the IAA was not satisfied that the applicant faced a real risk of suffering significant harm.

  7. On that basis, the IAA affirmed the delegate’s decision.

    CONSIDERATION

  8. By the earlier mentioned judicial review application, the applicant advances two grounds of review as follows:

    1.   The Second Respondent denied the Applicant procedural fairness in its failure to alert the applicant to new issues arising before the Authority of which the applicant was not previously aware, and in the alternative the Second Respondent denied procedural fairness because the Authority’s reasoning departed from the Department’s reasoning, resulting in in (sic) a practical injustice to the Applicant.

    2.   The Second Respondent constructively failed to review the decision of the delegate, and failed to conduct a review as required under section 473CC(1) of the Act, by failing to inform the applicant of issues arising on review, and failing to consider its discretion under section 473DC to get new information from the applicant.

  9. At the commencement of the hearing, I explained to the applicant that the Court cannot review the merits of the IAA’s decision or the applicant’s visa application. I explained that the Court’s task in undertaking a judicial review of the IAA’s decision is not to undertake a general merits review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds of jurisdictional error: Craig v South Australia [1995] HCA 58, 184 CLR 163 at 175. Therefore, absent identification of jurisdictional error, the Court cannot grant relief in respect of the IAA’s decision.

  10. I explained that jurisdictional error involved a “breach of an express or implied condition of a statutory conferral of decision-making authority” such that “it is ‘in law ... no decision at all’ and is in that sense ‘void’”: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, 98 ALJR 610 at [2]. And that jurisdictional error can take many different forms and that the categories are not closed. I gave the first applicant some examples of jurisdictional error as including material errors by a decision-maker:

    ·misunderstanding the applicable law;

    ·asking the wrong question;

    ·exceeding the bounds of reasonableness;

    ·identifying a wrong issue;

    ·ignoring relevant material;

    ·relying on irrelevant material;

    ·failing to consider a “claim” or a relevant “integer” of a claim;

    ·in some cases, making an erroneous finding or reaching a mistaken conclusion;

    ·failing to observe some applicable requirement of procedural fairness; and

    ·showing actual or there is apprehended bias.

  11. Turning to the grounds of review set out in the application, the applicant was unable to elaborate on nor provide any particulars of the generalised jurisdictional errors alleged by the review grounds, instead opting, despite my earlier explanation, to engage with the merits of his visa application and to raise a complaint that the former provisions of Pt 7AA of the Act requiring the IAA to conduct an ‘on the papers’ merits review were unfair and against justice. The review grounds reproduced above are unparticularised but they are not unknown to the Court, since they not infrequently appear in migration judicial review applications involving decisions of the IAA: See for example FQD17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 101 at [21]; ADH18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1371 at [30].

    Ground 1

  12. By ground 1 of the applicant’s application, the applicant asserts the IAA denied him procedural fairness because it failed to alert him to new issues arising, and alternatively that the IAA departed from the delegate’s reasoning, thereby resulting in a practical injustice to the applicant. The ground lacks particulars and does not identify the ‘new issues’ about which he says he was not informed, nor does it identify the nature of any departure in reasoning or why a departure by the IAA from the delegate’s reasoning denied him procedural fairness. The absence of particulars alone provides a basis for the ground to be dismissed: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37].

  13. The absence of particulars notwithstanding, it is not evident from the material before the Court that there were any new issues arising in the IAA’s review, and the issues being considered appeared to be the same as those before the delegate, including the dispositive issues. As the first respondent correctly observed, the IAA, like the delegate, was not satisfied the applicant faced a real chance of serious harm, or a real risk of serious harm, for reasons of his Tamil ethnicity, imputed political opinion, or as a returning failed asylum seeker. And this was not a matter where the IAA decided the review on a basis on which the applicant had not had an opportunity to comment. The country information, together with inconsistencies and vagueness of some aspects of the applicant’s claims, were dispositive to the delegate’s decision, and the IAA was not required to invite the applicant to address these matters.

  14. It is to be remembered that the scheme for an IAA review established by Pt 7AA of the Act contemplated an on the papers review. The IAA was required to conduct the review by considering the material that was before the earlier decision-maker and such other material as the Secretary may have provided. And it was required to do so without accepting or requesting information and without interviewing the applicant. In exceptional circumstances the IAA could consider new information – that is, a document or information which the IAA considered relevant which was not before the Minister or delegate when the Minister or delegate made the decision being reviewed. Additionally, the IAA had to be satisfied either that: the new information was not or could not have been provided to the Minister or delegate before the Minister or delegate made the decision; or the information was credible personal information which was not previously known, and had it been known, may have affected the consideration of the applicant’s claims. None of this arises here.

  15. It may be accepted that the IAA departed from the delegate’s reasoning in some matters, as the first respondent identified, including its acceptance that the applicant had assisted J to campaign for the TMVP in 2008 (which was not accepted by the delegate) and that the applicant had been interrogated and beaten by the Karuna group (which also had not been accepted by the delegate). That the IAA took a different view to the delegate in its assessment of some of the applicant’s claims was permissible and, without more, does not disclose denial of procedural fairness. The IAA was required to review the delegate’s decision and was not bound by the delegate’s decision, findings or reasoning. Pt 7AA of the Act contemplated that the IAA would evaluate for itself the material considered by the delegate. It was therefore open to the IAA to disagree with the delegate’s evaluation of the material, and it need not have provided to the applicant an opportunity to respond: DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12, 258 FCR 551 at [72] and [76]; BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169, 253 FCR 448 at [15], [38], [88]; BJB16 v Minister for Immigration and Border Protection [2018] FCAFC 49, 260 FCR 116 at [71]. No unfairness arises from the IAA forming its own views or making its own findings on the material. But here, in any event, the differing findings as between the IAA and the delegate were favourable rather than adverse to the applicant.

  16. Ground 1 does not disclose jurisdictional error and fails.

    Ground 2

  17. By ground 2, the applicant contends the IAA failed to conduct a review as required by s 473CC(1) of the Act because it failed to inform the applicant of issues arising on review and failed to consider exercising its discretion to get new information under s 473DC of the Act. In common with ground 1, ground 2 is also unparticularised and does not identify the issues arising on review about which the applicant says he was not informed. Nor does it identify the ‘new information’ the IAA ought to have considered receiving or obtaining in the exercise of its discretion under s 473DC. As already noted, the absence of particulars alone provides a basis for the ground to be dismissed. And as already explained there were no new issues on review. It was an on the papers review and the IAA was not required to inform the applicant of the issues considered by the delegate, which the IAA – on the papers – was reviewing and considering. The IAA was not required to exercise its discretion to get new information under s 473DC of the Act, and nothing in Pt 7AA of the Act required the IAA to seek new information, although it was empowered to do so. It may be accepted that the power to seek new information under s 473DC or a decision not to seek such information must be exercised reasonably: Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210, 253 FCR 475; BNB17 v Minister for Immigration & Border Protection [2020] FCA 304 at [54].

  18. As earlier explained, ‘new information’ in Pt 7AA was a document or information which the IAA may obtain if the new information was not before the Minister or the delegate when the Minister or the delegate decided the visa application, and the IAA considered the information may be relevant. But the IAA could only consider any new information in making a decision if it were satisfied that there were exceptional circumstances to justify considering the new information and the applicant established to the IAA’s satisfaction either that: the new information was not or could not have been provided to the Minister before the Minister made the decision; or the information was credible personal information which was not previously known, and had it been known, may have affected the consideration of the applicant’s claims. In the absence of any identified information or document which the applicant says ought to have engaged the IAA in considering exercising power under s 473DC of the Act, jurisdictional error cannot be made out. The dispositive issue as between the delegate and the IAA was the same, the same material before the delegate was before the IAA and there is no suggestion the applicant requested the IAA to consider new information.

  19. Ground 2 does not disclose jurisdictional error and so fails.

    DISPOSITION

  20. The application is dismissed.

  21. The first respondent sought an order that the applicant pay his costs fixed in the sum of $8,371.30 in the event the application failed. That amount is consistent with the amount fixed by reference to Pt 2 of Sch 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) for a migration proceeding that concludes at final hearing. The applicant did not advance any cogent reason why an award of costs in the amount sought should not be made. Section 214 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act)relevantly empowers the Court to award costs in all proceedings before it (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded. And except as provided by the Rules or any other enactment, the award of costs is in the Court’s discretion.

  22. In exercising the discretion conferred in s 214(3) of the FCFCOA Act, consideration must be given to whether there is a party in whose favour an award should be made and then the appropriate mechanism by which the quantum of that award should be calculated. Section 214(3) does not contain any express indication of the considerations upon which the Court is to decide which party should pay, and the extent of any costs that are to be paid. The power to award costs is to be exercised judicially, not arbitrarily or capriciously or so as to frustrate the legislative intent. The discretion is unconfined save that it is to be exercised having regard to the subject matter, scope and purpose of the empowering enactment: Oshlack v Richmond River Council [1998] HCA 11, 193 CLR 72 at [22] (per Gaudron and Gummow JJ).

  23. In the instant case, considering the history of this matter, the result, the work involved as disclosed from the filings, and the length and complexity of the hearing, I consider the applicant should pay the first respondent’s costs in the amount sought. That amount is reasonable and reflective of the costs incurred. The applicant will be ordered to pay the first respondent’s costs fixed in the sum of $8,371.30.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik.

Associate:

Dated:       1 September 2025


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