BYT17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2025] FCA 157

FEDERAL COURT OF AUSTRALIA

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

Appeal from:

BYT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 476

File number:

VID 398 of 2022

Judgment of:

STEWART J

Date of judgment:

12 March 2025

Catchwords:

MIGRATION – protection visa application – refused by the Minister’s delegate and that decision affirmed by the Immigration Assessment Authority – where primary judge found the Authority misapplied the requirements of s 473DD of the Migration Act 1958 (Cth) by failing to consider new information, but concluded the error was not material – whether the failure was sufficiently material for jurisdictional error – appeal allowed

Legislation:

Migration Act 1958 (Cth), Pt 7AA, ss 473DC, 473DD

Cases cited:

AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494

AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90

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

DPT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 15

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 418 ALR 152

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

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; 294 FCR 150

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506

Division:

General Division

Registry:

Victoria

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

56

Date of hearing:

4 March 2025

Counsel for the Appellant:

The Appellant appeared in person

Counsel for the First Respondent:

L Stevens

Solicitor for the First Respondent:

Sparke Helmore Lawyers

Solicitor for the Second Respondent:

The second respondent filed a submitting notice, save as to costs

ORDERS

VID 398 of 2022

BETWEEN:

BYT17

Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	STEWART J
DATE OF ORDER:	12 MARCH 2025

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.Order 2 of the orders of the primary judge on 20 June 2022 be set aside and replaced with orders that:

(a)A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent relating to the applicant and dated 10 April 2017.

(b)A writ of mandamus issue directed to the second respondent, to be constituted by a reviewer different from the reviewer who previously considered the matter, requiring it to determine the referred decision of a delegate of the first respondent according to law.

3.The first respondent pay the costs of the appeal, as agreed or taxed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWART J:

Introduction

1. The appellant is a Sri Lankan citizen from Jaffna in the Northern Province. He arrived in Australia in September 2012 by sea at Cocos (Keeling) Islands without a visa and became an “unauthorised maritime arrival” within the meaning of s 5AA of the Migration Act 1958 (Cth).

2. In January 2016, the appellant applied for a protection visa following an invitation from the Minister for Immigration and Border Protection. He claimed that he feared harm from the Sri Lankan authorities as a Tamil from the north of Sri Lanka and a person working to clear land mines for a non-governmental organisation (NGO), the Halo Trust. The appellant claimed that the Sri Lankan authorities suspected him of helping the Liberation Tigers of Tamil Eelam (LTTE) by supplying munitions or components sourced by him from his work and suspected him of being an LTTE supporter.

3. On 24 February 2017, a delegate of the Minister for the purposes of s 65 of the Migration Act refused the visa and referred the delegate’s decision to the Immigration Assessment Authority for automatic review pursuant to s 473CA of the Act (as it then was).

4. On 23 March 2017, prior to the Authority making its decision, the appellant’s solicitor provided written submissions to the Authority which included some new information which will be dealt with further below.

5. On 10 April 2017, the Authority affirmed the delegate’s decision to refuse the protection visa application.

6. The appellant unsuccessfully sought review of the Authority’s decision in the Federal Circuit and Family Court of Australia (Division 2). Although the Division 2 Court held that the Authority had misapplied s 473DD of the Act in respect of certain of the new information, it held that that error was not sufficiently material to establish jurisdictional error.

7. Now on appeal from the judgment of the Division 2 Court, the notice of appeal presses many of the same grounds advanced below and further contends that the primary judge erred by finding that the misapplication of s 473DD was immaterial and therefore not a jurisdictional error. As will be seen, the question of materiality is the critical issue in the appeal.

8. The appellant was not represented on the hearing of the appeal and was, understandably, not able to offer the Court much by way of assistance. The assistance given to the Court by the submissions of counsel for the Minister is acknowledged.

   The decision of the Authority

9. By way of overview of the Authority’s decision, the following summary draws heavily on the detailed and careful primary judgment.

10. The Authority accepted that the appellant provided a low level of support to the LTTE by lending his motorbike to LTTE members but was not satisfied that this in itself would indicate a real chance that the appellant would face harm on return to Sri Lanka.

11. The Authority accepted that the appellant worked as a mine clearer and took into account the appellant’s claim that members of the same company for which the appellant worked had gone missing. The Authority considered it plausible that the army was interested in the mine clearance operations and regularly questioned the appellant, possibly as frequently as daily as the civil war escalated, and that on some occasions he was physically assaulted. However, the Authority did not accept that the army suspected the appellant of supplying munitions to the LTTE. The Authority did not consider it plausible that the army would question the appellant daily for six months, as he claimed, but not conduct a search of his property in the period from 2006 to 2008 if he was suspected of supplying items to the LTTE.

12. The Authority did not accept the appellant’s claims that the army visited his home in 2008 in search of him or to kill him and that he left his home area in fear for his safety. The Authority also did not accept that the appellant left the mine clearing company that he worked for in 2008 because of fear for his safety, in circumstances where de-mining activities were hampered at times of escalated conflict and the appellant resumed working for the same company 14 months after he left.

13. The Authority was not convinced that the appellant had no further contact with his family after he left Jaffna in 2008 until he arrived in Australia in 2012, finding these claims to be implausible. The Authority accepted that the appellant’s family went to India in 2008, but did not accept that this was in order to avoid harassment based on the appellant’s mine clearance work.

14. The Authority was not satisfied that the appellant was of interest to the authorities after he resumed his employment in mine clearing work from July 2009. The Authority did not accept that in November 2012 or 2013 the authorities visited his home in Jaffna, nor did it accept the claim in the protection visa application that in November 2013 the authorities dug up his land looking for hidden weapons and took his work boots as these could be used implicate him as being linked to the LTTE. The Authority found it implausible that if the authorities were suspicious of the appellant hiding weapons from his time clearing mines in 2006 to 2008, they would leave it some five years before making a search of his property.

15. The Authority did not accept that someone came to the appellant’s aunt’s home in 2012 looking for him, and that he immediately resigned from his employment in fear for his safety and then departed to Australia to avoid harm from the authorities. The appellant had claimed that he left Sri Lanka five days after he resigned from his employment, but a certificate of employment showed that he had resigned some six weeks before he left Sri Lanka.

16. The Authority accepted that as a Tamil the appellant had a subjective fear of arrest, detention, disappearance and mistreatment at the hands of the Sri Lankan authorities. However, having regard to country information and the improved security situation since the appellant left Sri Lanka, the Authority was not satisfied that the fear was well-founded.

17. The Authority found that the level of societal discrimination the appellant would face on return to Sri Lanka on the basis of his Tamil ethnicity would not amount to serious harm or systemic and discriminatory conduct and that the appellant did not have a well-founded fear of serious harm on this basis.

18. The Authority accepted that on return to Sri Lanka, the appellant would be considered by the authorities to be a failed asylum seeker, who departed Sri Lanka illegally, and that as a consequence he may be questioned by police at the airport and may be remanded into police custody for a brief period of time. However, the Authority did not consider that this would amount to serious harm.

19. The Authority did not accept that the appellant’s employment as a mine clearer with an international NGO would result in him being perceived as being an LTTE supporter and therefore it was not satisfied that he would face harm on this basis.

20. Having considered the appellant’s claims individually and cumulatively, the Authority was not satisfied that there was a real chance that the appellant would experience harm in the reasonably foreseeable future in Sri Lanka. The Authority concluded that the appellant did not meet the definition of a refugee in s 5H(1) of the Act and therefore did not meet the requirements of s 36(2)(a).

21. The Authority also found that the appellant did not meet the complementary protection criteria in s 36(2)(aa) as there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there was a real risk that he would suffer significant harm. This complementary protection finding was based on similar factual findings to those made for the purpose of the refugee assessment, as well as its assessment that any mistreatment that the appellant would face upon his short detention on return to Sri Lanka would not be conduct that amounts to significant harm.

    The grounds of appeal

22. The appellant advances three grounds of appeal. They are expressed as follows:

    1. The Federal Circuit and Family Court (Division 2) at first instance erred in not finding that the Second Respondent (“the Authority”) fell into jurisdictional error in interpreting or applying the law.

    Particulars

    (a) The Authority failed to consider and to determine pursuant to section 473DD(b) of the Migration Act 1958 (“the Act”) whether what it regarded as “new information” regarding contact of the Appellant with his wife (CB 185-186, Decision [5]-[6]) was “credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims”, but the Authority was obliged to consider and to determine this question under section 473DD(b)(ii) of the Act before determining whether there were exceptional circumstances under section 473DD(a) of the Act to consider the information. The Court at first instance correctly found that the Authority erred in this way, but should also have found that this was a material error by the Authority, and therefore a jurisdictional error. (Judgement at first instance [40]-[53])

    2. The Court at first instance erred in not finding that the Authority fell into jurisdictional error in failing to consider relevant considerations.

    Particulars

    (a) Further or in the alternative to Particular (a) to Ground 1, the Authority failed to consider whether “new information” met the requirements of section 473DD(b)(ii) of the Act before considering whether there were exceptional circumstances to consider it pursuant to section 473DD(a).

    (b) (Particular (c) at first instance) The Authority failed to consider with an actual intellectual engagement the question whether the Appellant may be at risk of persecution or significant harm as a consequence of his work removing landmines, given its findings that he had suffered assaults and that there were reports of the abduction, murder and disappearance of persons working for international mine clearing agencies. (CB [13]-[14]),

    (c)(Particular (d) at first instance) The Authority found that the Appellant “on some occasions was physically assaulted” (CB 188, [14]), but did not make a finding whether this was each time he was questioned, twice a week, and whether it involved torture causing injury as the Appellant had claimed. (CB 9, 23, 84)

    (d) Particular (e) at first instance.) The Authority failed to consider with an actual intellectual engagement the question whether the Appellant had a real chance of suffering persecution or significant harm by torture or other serious or significant harm while in detention or otherwise under the control of the Sri Lankan authorities, on his return to Sri Lanka. This question was squarely raised by the Appellant’s evidence, his submissions, and the findings of the Second Respondent. (See eg. CB 42-44, 90-105, 122-137, 197-204, and CB 249, [19])

    3. The Court at first instance erred in not finding that the Authority fell into jurisdictional error in that it was legally unreasonable.

    Particulars

    (a) (Particular (b) at first instance.) The Authority was unreasonable in rejecting the claim of the Appellant that he was suspected of involvement with the LTTE and the Sri Lankan authorities, and that he left his employment in May 2008 because of fear for his safety. This was unreasonable, given the reports of harm to people working in removing mines, and given that the Authority accepted that the Appellant had been questioned and assaulted, and because it assumed that the Sri Lankan authorities always acted in a careful, orderly, efficient and synchronized way. (CB 188, [14]-[16]; 192, [25]).

    (b) (Particular (d) at first instance.) The Authority had no logically probative basis to reject the Appellant’s claim that the Sri Lankan authorities came to his home in Jaffna in 2012 or that they dug up his land looking for weapons in 2013, as they may have received additional information or developed suspicions at any time. (CB 190, [19])

    (c) (Particular (f) at first instance.) It was not reasonable for the authority not to find that the Appellant was at risk of persecution or significant harm in detention or in prison on his return, given the material before it relating to abuse of human rights and torture. (CB 122-137; 192-193 [28]-[30]) 

23. In summary form, the above grounds are that the primary judge erred in not finding that the Authority’s decision is affected by jurisdictional error in interpreting or applying the law, failing to consider relevant considerations and legal unreasonableness respectively.

24. It will be noticed that grounds 1(a) and 2(a) concern the Authority’s approach to new information in s 473DD, the one casting the error as an error of law and the other as a failure to take account of a mandatory relevant consideration. It is convenient to deal with both together.

    Appeal grounds 1(a) and 2(a): the s 473DD error

25. Section 473DD of the Act provided as follows:

    473DD           Considering new information in exceptional circumstances

    For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

    (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

    (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

    (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

    (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

26. In AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494 at [11]-[12] it was held that it is logically necessary for the Authority to first consider whether it is satisfied as to either of the circumstances in para (b) of the section before considering its state of satisfaction as to para (a). That is because the findings in relation to para (b) may be relevant to the state of satisfaction in relation to para (a). To elaborate, the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in para (a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant did not exist without first assessing that information against the criteria specified in both paras (b)(i) and (b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in para (a).

27. To understand the significance of the new information provided on the appellant’s behalf before the Authority made its decision it is necessary to start with the delegate’s decision. That is because the new information was provided in response to what the delegate decided.

28. The delegate recorded that the appellant claimed that he feared for his life and stopped working for the Halo Trust in 2008 and tried to relocate for his safety. The appellant further claimed that his family (excluding him) moved to India later in 2008, also to flee the harassment and persecution of the authorities. The appellant returned to work for the Halo Trust again from 2009 to 2012 in Vanni, a different part of the Northern Province. That was after having been contacted by his former manager by telephone. Sometime in that period, his son migrated irregularly to Australia from India, leaving the appellant’s wife without support. Consequently, despite their fears, his wife and daughter returned to Jaffna.

29. The delegate found that the appellant’s description of his flight to Australia was unconvincing. The delegate recorded that the appellant said that he did not contact his wife once in the three or four years he remained in Sri Lanka because he feared doing so would cause the authorities to harass his wife. The delegate said that this contradicts his own statement that he knew the authorities were already harassing her. That was put to the appellant, and he reiterated the claim that the authorities harassed his wife. He had kept his phone number, and the Halo Trust was able to call him to offer employment. The delegate found it incongruous that he would not contact his wife over fears of his number being intercepted by the authorities but would retain his phone and continue to use it.

1. In response to those issues about the appellant’s wife, the appellant’s solicitor made submissions to the Authority which included the following new information:

   (1)Calls between Sri Lanka and India were monitored by the Sri Lankan authorities because they were suspicious of Tamils who were relying on their association with LTTE affiliates in India. It was because of that monitoring that the appellant was not in contact with his wife while she was in India. As this former employer was in Sri Lanka, he did not have the same level of concern that the call was being monitored. Although stated as fact, this information is best understood as reflecting the appellant’s belief, as that is why it is or may be relevant – ie it explains or may explain why he did not contact his wife in India whether or not such calls were in fact being intercepted.

   (2)The appellant was aware his wife was harassed before she fled to India because he was in contact with her prior to her fleeing to India.

2. The Authority identified those statements made by the appellant’s solicitor in the written submissions as new information for the purposes of s 473DC of the Act. With reference to the definition of “new information” in s 473DC(1), the Authority must be understood as having accepted that the information was not before the delegate when they made their decision and the statements constitute information that may be relevant to the Authority’s review decision. The Authority reasoned as follows (at [6]) with regard to the new information:

   The IAA must not consider any new information from an applicant unless satisfied 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, or is credible personal information which was not previously known and had it been known may have affected the consideration of the applicant’s claims. The delegate asked the applicant detailed questions about this matter at the SHEV interview and the applicant consistently stated that he had no contact with his wife from the time he left Jaffna in 2008; he did not state that he spoke to her between then and when she left for India later in 2008. In response to questions about when he became aware of the harassment his wife experienced he stated that this was not until they re-established contact after his arrival in Australia. When asked why he was concerned about being in contact with his wife from 2008 he did not advance the claim about monitoring of telephone calls between India and Sri Lanka. The post-interview submission addressed the concerns the delegate raised at the interview, yet it did not provide this information. I have noted the representative’s comments in the submission that the applicant may find the immigration process and formal interviews difficult and he may be reluctant to speak openly to Australian authorities. However I am not satisfied that there is any sensitivity in this information that would support a contention that he had difficulty providing this information to the delegate. I am not satisfied that any exceptional circumstances exist that justify considering the new information. I have not had regard to this information. 

3. The primary judge started her analysis of the issue at hand by quoting from AUS17 at [11]-[12] which I have summarised above. After closely analysing the relevant reasoning of the Authority, her Honour concluded that the Authority failed to consider whether the new information provided by the appellant met the requirements of s 473DD of the Act in a manner that is consistent with AUS17 (at [43]). More specifically, her Honour found that the Authority considered the criterion in para (b)(i), even though it did not do so explicitly, but that it did not consider the criterion in para (b)(ii) before turning its attention to para (a) (at [38]-[43]). In this sense, the primary judge correctly identified that there was a legal error or failure to take into account a relevant mandatory consideration on the part of the Authority.

4. Her Honour then went on to consider whether the error was material (at [44]-[53]). Her Honour did so with reference to the then governing High Court authority, Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 and MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506.

5. Materiality has since been authoritatively and unanimously explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 418 ALR 152. All the Justices of the Court (at [7] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, Beech-Jones J agreeing at [38]) explained that materiality connotes “the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred.” “‘Realistic’ is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous” (at [14]).

6. The Court explained that “a court called upon to determine whether the threshold [of materiality] has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained” (at [15]). Further, “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)” (at [16]).

7. The first question that arises for consideration is whether the decision with reference to which materiality is to be considered is the decision of the Authority under s 473DD not to consider the new information because it was not satisfied that the grounds for doing so were established or its decision to affirm the decision of the delegate. That is to say, is it the immediate decision in respect of which the error in question operated that is to be considered, or is it the ultimate outcome of the visa application that must be considered? There is conflicting authority on that point.

8. Justice Colvin in DPT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 15 adopted the first approach. His Honour reasoned that since the error was directed at the states of satisfaction reached by the Authority for the purposes of s 473DD, the question is whether the formation of the required state of satisfaction could realistically have been different such that the Authority would have been empowered to consider the new information (at [42]). His Honour explained that s 473DD had the effect of determining the scope of information the Authority can consider in its process of fast track review under Pt 7AA, including whether on the basis of that information it should “get, request or accept” new information, and in that way established a jurisdictional limit upon the Authority's decision-making power in undertaking the review (at [50]). Further (at [52]):

   If the correct application of s 473DD could realistically have resulted in the consideration of the new information by the Authority then there has been invalidity in the discharge of the statutory duty. It is no less material if it might be concluded that the failure to comply with s 473DD was not likely to have affected the ultimate decision by the Authority.

9. The Full Court in AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90 (at [80] per Banks-Smith and Jackson JJ) identified a number of first instance decisions that adopted the second approach, ie that materiality is to be assessed with reference to the ultimate outcome of the review before the Authority. The Court did not decide which approach is correct because in that case the error was material to both outcomes, ie to whether the new information could be considered as part of the review process and to the ultimate outcome of the review (at [81] and [89] per Banks-Smith and Jackson JJ; at [182]-[183] per Feutrill J).

10. Counsel for the Minister submits that it is necessary for the appellant to establish materiality in respect of the ultimate decision which, in turn, requires materiality in relation to the s 473DD decision, ie it is necessary for the appellant to establish that had the Authority approached its task under s 473DD correctly there is a realistic possibility that it would have been satisfied of the requisites of that section and therefore considered the new information and that as a consequence of that consideration there is a realistic possibility that the ultimate decision would have been different. I am prepared to assume in the Minister’s favour, without deciding, that that is the correct approach to take.

11. The primary judge considered that it is difficult to conceive how any assessment of the appellant’s credibility overall might have been affected had the Authority not erred in its approach to s 473DD, or even if it had found that the requirements of that section were met in relation to the new information and had considered the new information and accepted it as fact (at [49]). Her Honour reasoned that the new information that the appellant had contact with his wife in 2008 prior to her departure for India was inconsistent with information and evidence that the appellant had previously provided to the Department, and that it was not realistic to conclude that one new statement by the appellant in the face of his several earlier inconsistent statements could impact the Authority’s overall assessment of his credibility in a way that could realistically have deprived him of the possibility of a successful outcome (at [50]).

12. The primary judge also reasoned that the new information about the appellant’s contact with his wife in 2008 could only reinforce the Authority’s rejection of the appellant’s evidence that he avoided contacting his family for fear that the army would harm him. It was reasoned that on that basis acceptance of the information could not feasibly increase the likelihood of the Authority accepting that the appellant was of interest to the Sri Lankan authorities (at [51]).

13. With reference to the information about telephone calls between Sri Lanka and India being monitored, her Honour reasoned that the information was provided to the Authority to explain why the appellant was afraid to contact his family when they were in India. However, her Honour reasoned, the Authority had already accepted the earlier assertion of him being afraid to contact his family in India without the reason provided by the new information so it could not have affected the outcome. Further, as there was no claim based on the fact of the monitoring of telephone calls as distinct from the appellant’s fear of it, her Honour reasoned that nothing turns on the submission that the Authority might have found that the monitoring of telephone calls did in fact happened (at [52]).

14. Before me, counsel for the Minister submits that there is no realistic possibility that the Authority could have been satisfied under s 473DD to consider the new information because it is already known that the Authority was not satisfied as to para (a), ie the Authority was in fact not satisfied that there were exceptional circumstances to justify considering the new information. With reference to AUS17 discussed earlier, that submission cannot be correct. That is because the Authority’s assessment of its state of satisfaction with regard to para (a) was conducted on a misunderstanding of the applicable law by not first assessing its state of satisfaction with regard to paras (b)(i) and (b)(ii) and then using that assessment to inform its assessment of that state of satisfaction with regard to para (a). Thus, the Authority’s assessment of its state of satisfaction with regard to para (a) may have been different had it done it correctly. It is therefore no answer to the problem to say that it is known what the Authority’s conclusion on para (a) is or would be.

15. It is reasonably clear that the Authority could not realistically have been satisfied as to s 473DD(b)(i) because the new information in question could have been provided to the delegate before the decision was made under s 65, as found and explained by the Authority at [6] (quoted above). With regard to s 473DD(b)(ii), all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of the new information is that:

    (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant’s claims.

    (Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [34].)

16. “Credible” information is “information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine)”: CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41] per Bromberg J, adopted as correct in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; 294 FCR 150 at [42], [62] per Mortimer and Jackson JJ. The relevant new information in this case meets that standard, it is also about an identifiable individual, being the appellant, and it was not known to the delegate (ie the Minister). Since in considering the new information to be “new information” within its defined meaning, the Authority must have considered it to be relevant to its decision, it is a small step to conclude that the new information could realistically, in the sense explained in LPDT, be considered by the Authority to possibly have affected the appellant’s claims before the delegate. It follows that the Authority could realistically have been satisfied as to para (b)(ii).

17. It is a matter of considerable speculation as to whether, having been satisfied as to para (b)(ii), the Authority could realistically have been satisfied as to para (a). Such a possibility is not fanciful; it is, in my assessment, realistically possible – the undemanding threshold of materiality is met in relation to it. Thus, in my assessment jurisdictional error is established on the approach of Colvin J in DPT17 with respect to the statutory duty in s 473DD. However, that is not the approach contended for by the Minister, as explained at [39] above. On the Minister’s submission, that inquiry must be directed at the ultimate conclusion of the Authority on the Pt 7AA review.

18. Turning then to whether that conclusion could realistically have been different, in my view the primary judge strayed impermissibly across the line of merits review. Her Honour’s detailed analysis of the evidence, the Authority’s reasons and what might or might not have resulted from consideration of the new information illustrates the point. The Authority was necessarily engaged in an evaluative exercise; there were many factors to consider, including evidence that pointed in different directions. It is hard to say with any degree of confidence that the new information could not have made a consequential difference.

19. Consideration by the Authority of the information that the appellant had contact with his wife before she fled to India could realistically have resulted in the Authority’s acceptance of that information as correct, and the previously given evidence that he had had no such contact as incorrect. That could be on the basis that the previous evidence was corrected by the new information, or that the previous evidence was the consequence of a misunderstanding. In circumstances where the appellant was speaking through an interpreter and, as was recognised by the Authority, the appellant may have found the immigration process and formal interviews difficult and he may have been reluctant to speak openly to the Australian authorities, one cannot exclude those as realistically possible conclusions. In my assessment, the primary judge erred in concluding to the contrary.

20. Also, in my assessment the primary judge erred in concluding that consideration by the Authority of the new information about the monitoring of telephone calls could not have made any difference to the ultimate conclusion. As mentioned above, the primary judge reasoned that the information was provided to the Authority to explain why the appellant was afraid to contact his family when they were in India, but the Authority had already accepted that he had that fear without the new information. However, the new information was proffered to explain why the appellant was afraid to contact his family when they were in India in response to the delegate’s conclusion that “[i]t is incongruous that he would not contact his wife over fears of his number being intercepted by the authorities, but would retain his phone and continue to use it.” Logically, the information could not have been proffered in response to any reasoning of the Authority since the Authority had not yet made its decision; the information was proffered to influence that decision.

21. The relevance of the new information with regard to telephone monitoring is that, if accepted, it explains why the appellant did not contact his family in India but still used his telephone in Sri Lanka which is how his former employer contacted him. Those are points on which the delegate had disbelieved the appellant, and the Authority (at [17]) was sceptical of the appellant’s claim that he had not had contact with his family when they were in India. Also, the Authority found (at [17]) that there was no information before it to explain why once in Australia the appellant was in contact with his wife in Sri Lanka by telephone without thinking that that might put her in danger. Logically, the new information with regard to telephone monitoring taking place between Sri Lanka and India for the reasons explained in the new information, if considered, could realistically have made a difference to that assessment.

22. Conscious of the boundary between judicial and merits review, it is not necessary, nor prudent, to unpick the evaluative possibilities any further. The essential point is that the new information was relevant and capable of bearing upon the evaluative task of the Authority being responsive to infelicities perceived by the delegate in the appellant’s statements. In all the circumstances, the Authority’s assessment has too many interrelated threads to be able to conclude with confidence that the new information, if considered, could not realistically have led to a different result.

23. For those reasons, the Authority’s legal error in approaching its task under s 473DD incorrectly, or by failing to take account of a mandatory relevant consideration, is a jurisdictional error. Appeal grounds 1(a) and 2(a) therefore succeed.

    The other appeal grounds

24. In view of the conclusion already reached that the appeal must succeed, it is not necessary to consider the remaining appeal grounds.

    Disposition

25. For the above reasons, the appeal must be allowed. Order 2 of the orders of the primary judge on 20 June 2022 should be set aside and replaced with orders that:

    (1)A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent relating to the applicant and dated 10 April 2017.

    (2)A writ of mandamus issue directed to the second respondent, to be constituted by a reviewer different from the reviewer who previously considered the matter, requiring it to determine the referred decision of a delegate of the first respondent according to law.

1. The notice of appeal also seeks the costs below. The primary judge made no order with regard to costs without explaining why, although it may have been because neither the originating application nor the appellant’s written submissions below sought an order for costs. For those reasons, I do not propose to make any such order with respect to the costs below.

2. Otherwise, the parties accept that the costs of the appeal should follow the result.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.

Associate:

Dated:       12 March 2025