BNP18 v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1251
•8 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BNP18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1251
File number(s): MLG 803 of 2018 Judgment of: JUDGE BINGHAM Date of judgment: 8 August 2025 Catchwords: MIGRATION LAW – judicial review of a decision of the Immigration Assessment Authority to not grant a protection visa – fast track decision – consideration of well-founded fear of persecution by reason of the heavy discrimination of Tamils in Sri Lanka – reasons of the IAA do not embrace a claim with respect to discrimination – particular not subsumed by the generality – no error in consideration of material before the IAA – application allowed Legislation:
Migration Act 1958 (Cth) ss 5H, 5J, 36, 473CB and 473DB
Cases cited: ECE21 v Minister for Home Affairs [2023] FCAFC 52; 297 FCR 422
ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 44; 283 FCR 164
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 256 FCR 593
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of last submission/s: 15 July 2025 Date of hearing: 15 July2025 Place: Melbourne Counsel for the Applicant: Mr Sharify Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the Respondents: Ms Mills Solicitor for the Respondents: Clayton Utz ORDERS
MLG 803 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BNP18
Applicant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE BINGHAM
DATE OF ORDER:
8 AUGUST 2025
THE COURT ORDERS THAT:
1.A writ of certiorari be issued directed to the Administrative Review Tribunal quashing the decision of the Immigration Assessment Authority dated 23 February 2018.
2.A writ of mandamus be issued directed to the Administrative Review Tribunal requiring it to reconsider and determine the Applicant’s application according to law.
3.The First Respondent pay the Applicant’s costs fixed in the sum of $8,371.30.
4.The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
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 BINGHAM
By an application filed in this Court on 27 March 2018 (Application), the Applicant seeks judicial review of a decision of the Immigration Assessment Authority (IAA), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
On 23 February 2018 the IAA affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) to not grant the Applicant a Safe Haven Enterprise (Class XE) (Subclass790) visa (Protection Visa) (IAA’s Decision).
BACKGROUND
The Applicant is a national of Sri Lanka. The Applicant is Hindu and a Tamil from Batticaloa in the eastern province of Sri Lanka.
The Applicant arrived in Australia on 26 October 2012. An irregular maritime arrival entry interview was conducted with the Applicant on 20 January 2013. The Applicant was invited to apply for a visa on 20 January 2016.
Visa Application
On 24 February 2017 the Applicant applied for the Protection Visa (Visa Application).[1] A statutory declaration from the Applicant was provided in support of the Visa Application. A letter acknowledging the Visa Application was sent to the Applicant on 7 March 2017.
[1] The visa application is dated 21 February 2017 and was received on 27 February 2017.
A request to attend an interview was sent to the Applicant on 26 April 2017. The interview took place on 15 May 2017 (Delegate’s Interview).
To be granted the Protection Visa the Applicant was required to satisfy criteria at the time of his Visa Application and at the time of the IAA’s Decision.[2]
[2] Migration Regulations 1994 (Cth), regs 790.21 and 790.22.
The legislative scheme at the relevant times provided pursuant to s 36(1A)(b) of the Migration Act that an Applicant for a protection visa must satisfy at least one of the criteria in section 36(2).
Section 36(2) provided:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm;[…]
Section 36(2A) defined the phrase “significant harm” in the context of s 36(2)(aa) as:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
Section 5H defined the term ‘refugee’. The definition included a person who has a nationality, is outside the country of their nationality and owing to a ‘well founded fear of persecution’ is unable or unwilling to avail themselves of the protection of that country.
Section 5J provided the definition for the phrase ‘well-founded fear of persecution’. Pursuant to s 5J(1) of the Migration Act, a person has a well-founded fear of persecution if: they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; there is a real chance they would be persecuted for one or more of those reasons; and the real chance of persecution relates to all areas of the relevant country. In sections 5J(2) to 5J(6) and 5K to 5LA additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are specified.
Section 5J(4) provided: where a person fears persecution for one or more of the reasons set out in s 5J(1)(a) that reason, among other things, must involve serious harm and systematic and discriminatory conduct.
The Applicant’s protection claims were primarily included in his statutory declaration that was annexed to the Visa Application. The protection claims included a fear of harm because:
(a)Of a perceived connection to the LTTE;
(b)He reported the existence of a “grease man” in his village to the army and that the army did not react and consequently protests against the army ensued;
(c)He was accused of organising the protest against the local military, was abducted, interrogated and beaten by persons unknown to him but who he suspected were Sinhalese army, Criminal Investigation Department (CID), Tamil Makkal Viduthalai Pulokal (TMVP) or another pro-Government group;
(d)On return to his home town he went into hiding. Whist in hiding unknown people came looking for him at his home and made inquiries of his family as to his whereabouts; and
(e)His brother was an activist and had been threatened by, among others, the TMVP.
Delegate’s Decision
On 25 May 2017 the Delegate refused to grant the Applicant the Protection Visa.
The Delegate was not satisfied that the Applicant was a refugee as defined by s 5H(1) of the Migration Act and therefore was also not satisfied that the Applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Migration Act.
Referral to the IAA
On 31 May 2017 the IAA sent the Applicant an acknowledgment letter confirming that the matter had been referred to it. A direction under s 473FB of the Migration Act setting out the requirements for dealing with the IAA was attached to the letter.
The IAA identified that no recording of the Delegate’s Interview with the Applicant existed and there were no notes either made or retained from that interview. As a consequence, on 6 February 2018 the IAA invited the Applicant to attend the IAA for the purpose of an interview on 16 February 2018. (IAA Interview). The interview took place on the scheduled date.
THE IAA’S DECISION
On 23 February 2018 the IAA affirmed the Delegate’s Decision. The Applicant was notified of the IAA’s Decision on 26 February 2018.
The IAA outlined the Applicant’s Visa Application history and characterised his claim as contained in the Visa Application as a fear of harm “because of his political opinion, his imputed political opinion, his membership of a particular social group and his Tamil ethnicity”.[3]
[3] IAA’s Decision, [2].
The IAA considered the material before it. The IAA found that because the recording of Delegate’s Interview with the Applicant did not exist it was not known if certain claims made by the Applicant were before the Delegate. In these circumstances the IAA proceeded on the basis that the submissions before the IAA about the Applicant’s claims and statements of the Applicant were not new information.[4]
[4] IAA’s Decision, [4]-[6].
The IAA then turned to the country information and reports referred to in the submission and provided to the IAA by the Applicant. The IAA found that the Human Rights Watch Annual Report 2016, an article in 2010 from Ceylon News, UK Home Office report on Tamil separatism in Sri Lanka dated August 2016 Version 3 (UK Home Office Report Version 3)[5] and International Truth and Justice Project July 2015 (together, the Reports) were available before the Delegate’s Decision. As the Reports predated the Delegate’s Decision the IAA was not satisfied that the Reports could not have been provided to the Minister before the decision on the Applicant’s visa was made. The IAA also found that the Reports were not credible personal information that was not previously known nor were there exceptional circumstances that justified considering the new information. The IAA observed that the Delegate considered and referred to a Department of Foreign Affairs and Trade report titled ‘Sri Lanka – Country Information Report’ dated 24 January 2017 (DFAT Report)and a UK Home Office report titled ‘Sri Lanka: Tamil Separatism’ dated 19 May 2016 Version 2 (UK Home Office Report Version 2) in the Delegate’s Decision and determined that it was appropriate to consider these reports. The IAA considered the Applicant’s reference from his work supervisor in Australia to be new information and was not satisfied that the reference should be considered.
[5] In paragraph [7] of the IAA’s Decision the IAA recorded the UK Home Office Report Version 3 as being dated 19 May 2016. The IAA went on to record in paragraph [7] and footnote 2 the UK Home Office Report Version 2 as being dated 19 May 2016. The Court Book at page 95 records that the UK Home Office Report Version 3 was dated August 2016 which was accepted at the Hearing by Counsel for both parties.
The IAA summarised the Applicant’s protection claims at paragraph [10] of the IAA’s Decision:
•The Applicant was born in Batticaloa, Eastern Province, Sri Lanka. He is Tamil and his religion is Hindu.
•Although he was not involved with the LTTE (Liberation Tigers of Tamil Eelam) and did not receive any training, his village was under the control of the LTTE before 1995 so his family had some contact with them.
•He fears harm from the Grease Men.
•He was threatened by unidentified groups because he is Tamil and he believes these unidentified groups were part of the Sinhalese Armed Forces, CID, TMVP (Tamil Makkal Viduthalai Pulikal), and/or other groups who supported the government and the army.
•On 10 October 2011, on his way home, he was approached by unknown masked men who forced him into a van. He was beaten and threatened. He suspects these men were from the TMVP.
•After this incident he went into hiding and arranged his departure from Sri Lanka.
•The Applicant will be harmed by the TMVP because he assisted the TNA (Tamil National Alliance) during the 2011 election. The TMVP approached him to join the campaign and provide assistance. He refused and assisted the TNA instead.
•Since his departure from Sri Lanka, the authorities have come to his house and questioned his family about his whereabouts, and they have approached his sister and questioned her.
•If he is forced to return to Sri Lanka he is scared that he will be detailed, tortured or killed by the Sri Lanka authorities or other groups.
•The Applicant would be targeted by the authorities wherever he goes because he is a Tamil from Batticaloa.
•He fears that if he returns to Sri Lanka he will be detained, fined and harmed by the authorities because he departed the country illegally. He is at further risk of harm because he claimed asylum in Australia.
As written.
The IAA outlined the refugee assessment criteria which applied including extracting s 5H(1) and s 5J of the Migration Act.
The IAA then turned to consider the Applicant’s claims having regard to the information and reports that were before it, namely the DFAT Report and UK Home Office Report Version 2.
The IAA made findings that:
(a)The Applicant had not been questioned, detained, arrested, or harmed by Sri Lankan authorities. The IAA was not satisfied that the Applicant was targeted because of his family’s contact with the LTTE.
(b)The Applicant would not be harmed because of his brother’s involvement in the TNA or as a low level supporter of the TNA.
(c)The Applicant would not be identified as a high profile activist.
(d)The Applicant did not suffer harm due to any connection to the LTTE, because he was of Tamil ethnicity, because of his political activities, or because he was perceived as being a supporter of the LTTE.
(e)Having regard to the country information provided in the DFAT Report, there was no real chance of harm to the Applicant on the basis of his Tamil ethnicity.
(f)While the Applicant had been questioned by an unknown group after the “grease-man” incident, he had embellished the incident for the purposes of claiming a protection visa.
(g)The Applicant’s claims that he went into hiding in Sri Lanka were not made out.
(h)The Applicant’s claims that people came looking for him and phoned his family asking for his whereabouts were not made out.
(i)While the Applicant would be returned to Sri Lanka as a failed asylum seeker the Applicant would not face a real chance of any harm as a result. The IAA accepted that he may face questioning, brief detention and a fine for lawful departure but found that this did not amount to persecution as contemplated by s 5J(4).
(j)The Applicant would not face any real chance of persecution due to having departed illegally.
The IAA found that the Applicant did not meet the requirements of the definition of refugee in s 5H(1) and did not meet the criterion in s 36(2)(a).
The IAA went on to consider the complementary protection criterion and s 36(2A). Based on its factual findings and country information. It was not satisfied that there was a real risk of the Applicant being subjected to significant harm. The IAA found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being returned there was a real risk that the Applicant would suffer significant harm and therefore he did not satisfy s 36(2)(aa).
PROCEEDINGS BEFORE THE COURT
The Application was filed in this Court on 27 March 2018, within 35 days of the date of the IAA’s Decision as prescribed by s 477 of the Migration Act. The Applicant was represented throughout these proceedings.
Both the Applicant and the Minister were represented by Counsel before me on 15 July 2025 (Hearing).
The following material was relied on at the Hearing: the Court Book filed by the Minister on 3 April 2019, the Amended Application, the Response, the Applicant’s Outline of Submissions filed 17 June 2025, the Affidavit of Leah Perkins filed 16 June 2025, and the Minister’s Outline of Submissions filed 1 July 2025. Both parties also filed a list of authorities.
The Amended Application contained two (2) grounds of review:
Ground one
1. The Second Respondent fell into error by failing to consider an explicit or in the alternative, a claim which clearly arose from the material that the applicant had a well-founded fear of persecution by reason of the heavy discrimination of Tamils in Sri Lanka.
Particulars
a.Before the delegate, the applicant had made a claim that Tamils such as he were heavily discriminated against in Sri Lanka.
b.This was recorded in the delegate's reasons for decision which were before the second respondent.
c.The second respondent failed to consider this claim.
d.The failure to consider this claim was material.
Ground two
2. The Second Respondent fell into error by failing to consider the excerpts of country information which were favourable to the applicant's visa application and which were provided with his visa application.
Particulars
a.The applicant provided excerpts of country information with his visa application, including information which directly contradicted the notion that the Sirisena Government was the rising of a new dawn for the treatment of Tamils in Sri Lanka.
b.The Second Respondent failed to consider the excerpts of country information provided by the applicant with his visa application.
c.The failure to consider this information was material.
As written.
CONSIDERATION
The IAA’s Decision was made under the “fast track” review process in Part 7AA of the Migration Act. The fast track review process is a review on the papers where the IAA reviews a decision by considering review material provided to it by the Delegate without accepting or requesting “new information”. [6] The IAA is under no duty to interview a review applicant, to conduct a hearing or to request new information from the applicant. Section 473DB(1) of the Migration Act relevantly provided:
Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CB by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
[6] Migration Act 1958 (Cth), ss 473CB and 473DB.
The IAA determined that it was appropriate to conduct an interview with the Applicant because there was no recording or notes of the Applicant’s interview with the Delegate. The IAA determined that the submissions about the Applicant’s claims, statement of the Applicant, DFAT Report and UK Home Office Report Version 2 were not new information whereas the UK Home Office Report Version 3 was and hence the IAA did not consider it.
Counsel for the Applicant described both claims made by the Applicant as narrow.
Ground 1
Ground 1 was described as a failure to consider a claim. It is alleged by the Applicant that the IAA failed to consider the Applicant’s claim that he would suffer “heavy discrimination” on return to Sri Lanka by reason of being a Tamil.
It was submitted on behalf of the Applicant that the review material provided to the IAA pursuant to s 473CB(1)(c) of the Migration Act included the statement of reasons for decision of the Delegate to refuse the visa and would usually include the recording of the interview between the Delegate and the Applicant. As I have already noted there was no such recording or notes of the Delegate’s Interview available.
The statement of reasons of the Delegate’s Decision which was before the IAA included, under the heading ‘The broader situation for Tamils including discrimination’, a record that the Applicant had submitted to the Delegate that “Tamil’s continue to be the subject of ‘heavy’ discrimination in Sri Lanka” (the Discrimination Claim). The Delegate made the following findings:
[…] With regards to any discrimination, hardship and persecution in Sri Lanka on the basis of his Tamil ethnicity, I note country information indicates that Tamils from areas formerly under the control of the LTTE may face a degree of discrimination or harassment, and do not have the same opportunities as Singhalese Sri Lankans. As such I accept that the applicant may be at risk of discrimination in Sri Lanka. I also accept many Tamils may feel alienated to a degree and feel distrustful of the Sri Lankan authorities since the end of the war. However, I find the level discrimination or economic hardship as described (if it were to occur to the applicant) would not amount to serious harm and that any fear of harm for this reason is not well-founded. […]
Footnotes omitted. Otherwise as written.
Relying on ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 44; 283 FCR 164 it was submitted by Counsel for the Applicant that the effect of s 473DB(1) of the Migration Act was that the Delegate’s reasons formed part of the review material. Consequently, the IAA was bound to consider the Discrimination Claim because it was clearly considered by the Delegate as evidenced by the findings extracted in the above paragraph.
Counsel for the Applicant took me to the transcript of the IAA Interview in particular the statement the made by the reviewer to the Applicant at the commencement of the interview which was in the following terms: “All right. It’s important that you understand that this interview is not an opportunity to restate all of your claims”. This, it was submitted, was a standard statement made when the IAA exercises a discretion to undertake an interview and that making such a statement in the circumstance of this case where there is no recording of the Applicant’s interview with the Delegate deprives the IAA from considering what was before the Delegate.
In response to a question from me as to whether I could imply from a fair reading of the IAA’s Decision as a whole that there had been consideration of the Discrimination Claim by the IAA the Applicant’s Counsel submitted that if the IAA’s Decision included a finding such as:
[…] this person is a Tamil, there is country information before me, and the delegate considered whether they would be able to access government services, health education in the same way as a non-Tamil […]
Then the IAA would not need to use the word “discrimination” as such a finding would have “gotten to the heart” of the Applicant’s Discrimination Claim.
The Minister submitted that, notwithstanding the particular words ‘heavy discrimination’ were not used by the IAA, when taken as a whole, the IAA’s Decision demonstrated it had read, identified, understood and evaluated the representation made by the Applicant to the Delegate that Tamils are heavily discriminated against in Sri Lanka. Counsel for the Minister submitted that the duty was to consider the effect of the claim being made and discrimination is not a term of art.
The Minister referred me to paragraphs [10], [29], [32] to [33] of the IAA’s Decision as examples of the Applicant’s claim that Tamil’s suffer ‘heavy discrimination’ in Sri Lanka, hence the claim was considered by the IAA. The Minister relied on the IAA’s reference in paragraphs [33] and [38] to country information, being the DFAT Report, “which assesses that monitoring and harassment of Tamils in day-to-day life has decreased significantly under the Sirisena Government”. It was submitted that the reference to “monitoring and harassment” was a clear reference to the Discrimination Claim. It was further submitted that the IAA’s references to country information regarding Tamils’ positive interactions with authorities and Tamils’ level of political influence, inclusion in political dialogue and parties are all matters in which the IAA considered the treatment of Tamils compared to non-Tamils and whether or not there was discrimination.
With respect to the introductory statement of the IAA when interviewing the Applicant it was submitted that such a statement cannot be conflated with the IAA saying “I will not consider the claims that have been made”.
I disagree with the submission of the Minister that the word discrimination is not a term of art. Even in its lay usage it connotes differential treatment because of an attribute, in this case being of Tamil ethnicity. I also disagree that a reference to “monitoring and harassment” is a clear reference to discrimination. The term harassment generally relates to unwanted conduct. In s 5J(4)(c) of the Migration Act the fear of persecution because of an attribute referred to in s 5J(1)(a) must involve not only serious harm but also systematic and discriminatory conduct. I do not consider that the language used by the IAA in its reasons including “persecution”, “monitoring” and “harassment” allows me to infer that the Discrimination Claim made by the Applicant was read, identified, understood and evaluated. If anything, the language indicates a consideration of that element of “serious harm” referred to in s 5J, and in particular 5J(5), of the Migration Act in that the IAA contemplates harassment and ill treatment but not issues of potential economic hardship, access to basic services and capacity to earn a livelihood in a manner that recognises differential treatment due to Tamil ethnicity. I do not accept that this is a case where the particular is subsumed by the generality: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 256 FCR 593 at [46] and [47].
Taking a commonsense and realistic approach to understanding the reasons of the IAA as a whole,[7] I am of the view that the reasons of the IAA fail to demonstrate that it read, identified, understood and evaluated the claim that Tamil’s were subject to “heavy discrimination”: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [24]. The Discrimination Claim was clearly articulated in the Delegate’s Decision. The IAA proceeded without a proper awareness of the claim, and therefore without an appreciation of the matters that might bear upon the decision to be made by it: ECE21 v Minister for Home Affairs [2023] FCAFC 52; 297 FCR 422 at [9]. The IAA has overlooked the Discrimination Claim. The Delegate’s findings expressly referred to “a risk of discrimination in Sri Lanka”. The reasons of the IAA do not embrace a claim with respect to discrimination. I accept that the use of the term “discrimination” or a derivative need not be used to show that the IAA had considered the Applicant’s discrimination claim but I am unable to accept that those paragraphs referred to by the Minister in written and oral submissions expressly or impliedly deal with a claim of discrimination.
[7] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259.
Accordingly, I find that the IAA failed to consider the Applicant’s Discrimination Claim and as such the IAA has committed a jurisdictional error and that error is material.
Ground 2
Ground 2 claimed that the IAA failed to consider excerpts from country information provided by the Asylum Seeker Resource Centre as an attachment to the Visa Application (ASRC Document).[8]
[8] Court Book 91-111.
Counsel for the Applicant submitted that the IAA in stating in its reasons that “I will consider these reports” is not sufficient to discharge the IAA’s obligation of engagement with the reports. In this regard the Applicant relied upon the reasoning in Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589.The Applicant submitted that no reference is made by the IAA to the documents. Much of the focus of the Applicant’s oral argument was on the failure to consider the content from the UK Home Office Report Version 3 which was extracted in the body of the ASRC Document.
It was submitted by the Applicant’s Counsel that the IAA’s conclusion at paragraphs [33] and [34] were premised on the consideration of the DFAT Report that the new Sirisena Government elected in 2015 had led to a significant decrease in the monitoring and harassment of Tamils on a day-to-day basis. The IAA referred to the DFAT Report finding that several ‘symbolic’ changes in Sri Lanka had contributed to a ‘more positive outlook’ for reconciliation. It was submitted by the Applicant’s Counsel that there was no consideration of the material extracted at page 5 of the ASRC Document. It was further submitted that to establish that the IAA had engaged in the requisite consideration of the extract from the UK Home Office Report Version 3 there must be some form of overt reference of a preference for one (1) report over another.
The Minister submitted that the IAA had considered the UK Home Office Report Version 2 as well as the DFAT Report. The use of the language by the IAA “I will consider these reports” was a reference to both the UK Home Office Report Version 2 and the DFAT Report. Counsel for the Minister took me to those paragraphs of the IAA’s Decision referring to both the UK Home Office Report Version 2 and the DFAT Report being paragraphs [29], [33], [34], [35], [38] and [55]. It was also submitted that there was no evidence before me that there was any significant difference between the UK Home Office Report Version 2 and the UK Home Office Report Version 3.
With respect to the reference to the IAA’s statement “I will consider these reports” it is clear from a plain reading of paragraph [7] of the IAA’s Decision that this is a reference to the DFAT Report and the UK Home Office Report Version 2. I agree that there is no evidence before me that Version 2 differed in any meaningful way to Version 3.
It is clear that the IAA did not consider UK Home Office Report Version 3 as specifically excluded that report from consideration at paragraph [7] of its reasons. The IAA found that UK Home Office Report Version 3 was not provided to the Delegate and was new information that could have been provided prior to the Delegate making a decision. The IAA did not accept that this report was credible personal information nor were there exceptional circumstances that would allow consideration of the new information. I am unable to reconcile the differences in the dates of the UK Home Office Report Version 3, see footnote 5 of these Reasons. The IAA refers to the date of Version 3 in the IAA’s Decision as 16 May 2016 whereas the ASRC Document referred to 19 August 2016 in any event both dates show that Version 3 pre-dates the Delegate’s Decision to refuse a visa on 25 May 2017.
There is no ground of review pressed by the Applicant that UK Home Office Report Version 3 was before the Delegate, was not new information or that there were exceptional circumstances as to why Version 3 should have been considered by the IAA. In any event neither Version 2 or Version 3 of the UK Home Office Report were before me.
No jurisdictional error has been identified by the Applicant. Ground 2 must be dismissed.
CONCLUSION
The Applicant has established a jurisdictional error with respect to Ground 1. A writ of certiorari is to be issued quashing the IAA’s Decision.
A writ of mandamus is to be issued and directed to the Administrative Review Tribunal requiring it to reconsider the Visa Application made by the Applicant.
The Applicant sought costs on scale in the amount of $8,371.30. The scale amount is prescribed in Item 3, Division 1, Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). I intend to make an order that the Minister pay the Applicant’s scale costs fixed in the amount of $8,371.30.
Orders will be made accordingly.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham. Associate:
Dated: 8 August 2025
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