Cii19 v Minister for Immigration, Citizenship and Multicultural Affairs - [2023] FedCFamC2G 967

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CII19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 967

File number(s): ADG 212 of 2019

Judgment of: JUDGE BROWN

Date of judgment: 31 October 2023

Catchwords: MIGRATION – Application for judicial review – decision the Immigration Assessment Authority (IAA) – application for protection visa – citizen of Sri Lanka – fast track applicant – discretion provided under section 473DA to obtain further information from the applicant – was the decision of the IAA not to interview the applicant legally unreasonable – matters to be considered – no jurisdictional error found – application dismissed with costs

Legislation: Migration Act 1958 (Cth) Pt 7AA, ss 36(2), 46A, 65, 473BA, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE

Cases cited:
ABT17 v Minister for Immigration & Border Protection (2020) 269 CLR 439

ALD19 v Minister for Immigration, Citizenship & Multicultural Affairs (No 2) [2022] FCA 1131

AWG18 v Minister for Home Affairs [2020] FCA 744

BCQ16 v Minister for Immigration & Border Protection [2018] FCA 365

BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 169

BMV16 v Minister for Home Affairs [2018] FCAFC 90

BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958

CCQ17 v Minister for Immigration & Border Protection [2018] FCA 1641

DGZ16 v Minister for Immigration & Border Protection (2018) 258 FCR 551

DMO18 v Minister for Immigration & Multicultural Affairs [2023] FCA 61

DYK16 v Minister for Immigration & Border Protection (2018) 267 FCR 69

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1

Minister for Immigration & Citizenship v Li (2013) 297 ALR 225

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CRK18 [2021] FCA 1070

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217

Division: Division 2 General Federal Law

Number of paragraphs: 128

Date of hearing: 9 August 2023

Place: Adelaide

Counsel for the Applicant: Mr Barnes

Solicitor for the Applicant: MSM Legal

Counsel for the First Respondent: Mr Kaplan

Solicitor for the First Respondents: Sparke Helmore

Solicitor for the Second Respondent: Submitting notice filed save as to costs
ORDERS

ADG 212 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
CII19

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

31 OCTOBER 2023

THE COURT ORDERS THAT:
1.The application filed 14 June 2019 is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of EIGHT THOUSAND, THREE HUNDRED AND SEVENTY-ONE DOLLARS AND THIRTY CENTS ($8,371.30).

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION

This is an application for judicial review of a decision the Immigration Assessment Authority,[1] made on 17 May 2019, not to grant the applicant a protection visa, pursuant to the provisions of section 65 of the Migration Act 1958 (Cth).[2]
[1] Hereinafter referred to as “the IAA”.
[2] Hereinafter referred to as “the Act”.
The applicant is a citizen of Sri Lanka, where he was born on 21 January 1979. He is a Tamil by ethnicity and a Hindu by religion. He arrived in Australia, by boat, on 28 September 2012. Because of the nature of his arrival, provisions of the Act required that he be classified as an unauthorised marine arrival for migration purposes.[3]
[3] In general terms, an unauthorised marine arrival is a person who entered Australia between August 2012 and 1 January 2014 without authority from the Australian Government. Pursuant to section 473BA of the Act they are also known as fast track review applicants.
This classification prescribes the manner through which he was able to claim the protection of Australia. In simple terms, unauthorised marine arrivals are prevented from making any application for asylum until administratively authorised to do so and thereafter, the manner in which their applications are to proceed is stipulated by the Act.
It is mandated that following a decision, at the Ministerial level, to allow an application for such a protection visa to proceed – a process commonly referred to as lifting the bar – and the rejection of the resulting application by a delegate of the Minister concerned, the documentation in support of the application is referred for an automatic process of independent administrative review by the IAA.
In legislative terms, this process is designated as one pertaining to a fast-track reviewable decision. Necessarily, because of the applicable legislative regime, the process, at the IAA level is envisaged to take place on the papers, without any further input from the person affected by the decision under review, unless certain legislatively stipulated conditions are satisfied.
The central issue arising in the current matter is whether the IAA should have exercised a discretion conferred upon it, by section 473DC of the Act, to obtain further information from the applicant, in respect of various aspects of his claim for protection, which had been rejected by the Ministerial Delegate and its failure to do so resulted in an outcome which is legally unreasonable.
BACKGROUND
On 14 February 2017, the applicant applied for a Safe Haven Enterprise Visa,[4] after the Minister for Immigration & Border Protection had lifted the bar to his application pursuant to the provisions of section 46A(2) of the Act. This application was rejected by the Ministerial Delegate on 28 September 2018. As indicated above, the IAA further rejected his application on 17 May 2019, after referral of the matter to it.
[4] Hereinafter referred to as “the SHEV” or “the visa”.
The applicant seeks the protection of Australia on the basis that he satisfies the definition of refugee contained in section 36(2)(a) of the Act. Essentially, the applicant must satisfy the relevant decision-maker that he is subject to a real chance of suffering persecution, as a consequence of his ethnicity, religious beliefs or political views, if returned to Sri Lanka.
The applicant submitted a statement in support of his claim for protection on 6 February 2017. He sought the applicable SHEV on the following grounds:
·He had left Sri Lanka because he had previously been detained, tortured and harassed by the Sri Lankan government, who suspected him of being involved with the Liberation Tigers of Tamil Eelam[5] and because of the involvement of members of his family with the LTTE;
·He claimed that he would be arrested, detained, tortured and killed by the Sri Lankan Government and its agencies, if forced to return to Sri Lanka;
·He further feared that he would be targeted because he is a Tamil, who has been suspected of being a LTTE member because of his family links with the LTTE;
·He further claimed to have an extensive political profile, with the Sri Lankan authorities, which has resulted in him being detained and severely tortured over the course of several years;
·After he left Sri Lanka, the applicant claimed that a person with whom he had previously been in prison, but who had fled to Canada, and then subsequently returned to Sri Lanka, had been arrested, detained and then tortured to death. Because of his previous association with this person, the applicant fears that the same thing would occur to him; and
·Given his profile, the applicant asserts that the Sri Lankan authorities would harm him no matter where in the country he moves to because of their national operations and extensive networks in Sri Lanka.[6]
[5] Hereinafter referred to as the “LTTE”.
[6] See Court Book at pages 148-149.
Accordingly, at this stage, the applicant did not claim to have any direct personal involvement with the LTTE. Rather, he feared adverse consequences, for himself, if returned to Sri Lanka, because it was likely to be the case that he would be suspected of having such a level of involvement.
When interviewed by the Ministerial Delegate at a later stage, he added some further elements to his claim for protection. In particular, he disclosed that he had had an extensive personal involvement with the LTTE at a high military level of its operations. He further indicated that he had not disclosed this level of involvement, in the early stages of his arrival in Australia, because of concerns that it would become known to the Sri Lankan authorities with possible adverse consequences for him.
After this interview, the Ministerial Delegate accepted some aspects of the recently presented claim – namely that the applicant was likely to have had some involvement with the LTTE during the conflict in Sri Lankan in the late 1990’s given his age and the fact that all Tamil households in his area were coopted to have a member train with the LTTE.
However, on the basis of its assessment of the applicant’s credit, it rejected his claim of extensive involvement with the LTTE. This led to the Delegate concluding that the applicant did not face a real chance of being persecuted, if returned to Sri Lanka, because of his involvement with the LTTE. As a consequence, the Ministerial Delegate rejected the applicant’s protection visa application, and the case was automatically referred to the IAA for further review.
THE REVIEW PROCESS
The applicant was assisted by a migration agent in his application for a SHEV. After the provision of his written statement, he was interviewed by the Ministerial Delegate on 29 November 2017, in a process referred to as the PV interview.
In this interview, as indicated above, the applicant made some additional claims to support his visa application, which can be summarised as follows:
·He had in fact joined the LTTE, on a part time basis, in 1995.
·He had begun training in secret intelligence work. He completed his training in 1996.
·After the completion of his LTTE training, he had entered areas of Sri Lanka controlled by the Sri Lankan army and collected intelligence for the LTTE.
·He had been given the rank of major because of his work in the battle intelligence section.
·He had worked in this section until his arrest by the SLA in April 2007.
·During his operational role with the LTTE he had planted mines on army vehicles.
·He had been involved with the LTTE on a part-time basis.
·He had received training in self-defence, shooting, explosives and intelligence.
·He had served with the LTTE until his arrest in 2007.
·He had been involved in fighting in the Jaffna area.
·He had been released from prison on bail in November 2009, but his case had not as yet been finalised.
·In October 2011 he had attended at Anuradhapura Court but had not reported to the army.
·In 2012, he claimed to have been beaten resulting in a broken leg.
These claims were more significant and had a different thrust than those made in his initiating statement. Initially, the applicant had indicated that the Sri Lankan authorities suspected that he had been involved in the LTTE and were likely to target him because of the involvement of his family with it. In interview, he disclosed a more active involvement with the LTTE, including being a high-ranking officer, who had been an actual combatant in the Sri Lankan civil war.
It was the applicant’s case that he had not disclosed these matters because he was fearful of revealing his involvement with the LTTE to Australian government authorities. The Ministerial Delegate did not accept the applicant’s claim that he had been a part time combatant in the intelligence division of the LTTE, holding the rank of major.
Further, it was not accepted that he had been released from prison in November 2009 and had an outstanding court case in Sri Lanka. Given these findings, the Delegate did not accept that the applicant was of interest to the criminal investigation department, the Sri Lankan Army[7] or other security agencies in Sri Lanka.
[7] Hereinafter referred to as the SLA.
The Ministerial Delegate accepted the following aspects of the applicant’s claim:
·He had undergone LTTE training between 1995 and 1996.
·He had extended family members in the LTTE, some of whom had been killed or had disappeared during the Civil War. However, it was not accepted that these individuals had had a high profile with the LTTE.
·He had been detained from April 2007 until November 2009, when he had been released but required to report regularly to the SLA.
·He had physical and mental health issues.
·He had departed Sri Lanka illegally by boat in July 2012.
·If returned to Sri Lanka, he would be treated as a failed asylum seeker, who had departed illegally.
The Ministerial Delegate did not accept the gravamen of the more recent claims regarding his operational involvement with the LTTE. In particular, the Ministerial Delegate did not accept the applicant’s explanation as to why he had not disclosed these matters on his initial arrival in Australia and in support of his SHEV application but had delayed disclosing them until the PV Interview.
The Ministerial Delegate’s findings in this respect were as follows:
I have considered the applicant's explanation for disclosing for the first time, claims of his personal LTTE involvement at the PV interview. He claimed the reason was because he has now (at PV interview) been assured the information he discloses to the Department is protected and would not be released to the authorities in Sri Lanka.
I appreciate the sensitive nature of the applicant's new claims and his fears about disclosing them prior to the PV interview. I consider this extenuating circumstance to satisfactorily explain a reluctance to disclose his claimed LTTE associations in his arrival interview, when he had only recently arrived in Australia, was unfamiliar and mistrustful of government authorities and did not have the benefit of legal advice. I also accept that as a newly arrived asylum seeker the applicant may have been fearful of the Australian authorities and was afraid to reveal his personal involvement in the LTTE. However, I find the applicant's explanation unconvincing. Even if he feared the consequences of disclosing his personal LTTE connections in previous interviews (the arrival interview conducted on 1 February 2013), it does not explain why he did not disclose the full extent of his connections nor his own work for the LTTE in his SHEV application but only did so the day of his PV interview.
I do not consider it credible that having already disclosed other family links to the LTTE and his own arrest and two year imprisonment in Sri Lanka, he would have also been afraid to mention his own involvement with the LTTE before the PV interview, particularly after he obtained the advice and assistance of a registered migration agent in preparing his SHEV application. I find it difficult to accept that it was only at his PV interview that he was assured that anything disclosed in his application for protection would not be disclosed to the Sri Lankan authorities and that he would not have been informed of this earlier in the protection process including when he was making his written statement.
I acknowledge the applicant claims in his SHEV application that his written statement is only a summary of his claims for protection and that he will provide further information in relation to his protection claims during his interview with the Department. That in his entry interview (also known as arrival interview) conducted on 1 February 2013, he was not made aware during the interview that the information provided would be used for the purpose of assessing his claims for protection and that there are minor corrections he would like to make to his entry interview and previous application, relating to dates, addresses and spellings. He adds that he did not have sufficient time to explain in detail the events that happened to him in Sri Lanka at his entry interview.
While I have some doubt, I have taken into consideration relevant country information that indicates that the LTTE required a person from each household to join them and that during the conflict, it would not have been possible for a young Tamil civilian not to have had any contact with the LTTE and that all able-bodied persons from 16 to 45 were required to undergo some physical training. On that basis, and despite his failure to include this aspect of his claims in his SHEV application or arrival interview, I am prepared to accept that the applicant himself from 1995 to 1996 underwent training with the LTTE.
However, given the late raising and changes of the applicant's claims from 'I was never involved with the LTTE as stated in his written statement (SHEV application) to having claimed at PV interview that he worked part-time for the LTTE from 1996 to 2007, the vagueness of his evidence about his role in the intelligence division of the LTTE and the battles in Jaffna he claimed to have participated in, the general implausibility of being a part-time fighter who was awarded the ranking of Major and his claimed reasons for not disclosing this claim earlier (prior to PV interview), I am not satisfied that the applicant worked for the LTTE in the capacity claimed from 1996 to 2007.
I am not prepared to accept that the applicant’s amended claims that he [is] a part-time fighter with the LTTE from 1996 to 2007, or that he held the ranking of Major because of the time spent in the LTTE. I have formed the view that he has exaggerated and embellished some aspects of this personal involvement with the LTTE and interest by the authorities in order to strengthen his claims for protection.[8]
[8] See Court Book at pages 236 - 237.
Accordingly, on the basis of the assessment made of the applicant’s credit, the Delegate did not accept the veracity of the applicant’s explanation for not providing the aspects of his claims relating to his high level of involvement with the LTTE, including at a military and operational level or the truth of those claims.
However, notwithstanding the Ministerial Delegate’s rejection of the applicant’s claim regarding his long-term personal involvement with the LTTE and its significant nature, it was accepted that because of the applicant’s Tamil background, particularly where he lived, along with his age and state of health it was highly probable that he would have been coopted, at some stage in 1995 or 1996, by the LTTE, for some form of military training.
Given these circumstances, it was accepted that there was also a probability that he had been arrested and detained by the Sri Lankan authorities because of their suspicions in this regard, for the period of two years between 2007 and 2009, during which he had been interrogated and seriously mistreated. His statements in this regard were consistent with country information available and other documents submitted by the applicant in support of his SHEV application.[9]
[9] See Court Book at page 237.

However, in this context, the Ministerial Delegate did not accept the reason for the applicant’s detention was that he had been charged with actual attacks on the SLA or the shooting of any of its personnel or the possession of weapons. Rather, it was considered possibly to be the case that he had been detained because of suspicions that he may have had some association with the LTTE, notwithstanding the Delegate did not accept that he had, in fact, ever held any senior position or otherwise had a high profile with the Sri Lankan authorities.
In this context, the Ministerial Delegate found that the applicant had much later, at the PV interview stage, embellished his claim for protection, on the basis of fabricated claims of extensive operational involvement with the LTTE.
In the context of these findings, the Ministerial Delegate concluded as follows:
Noting I consider the applicant’s involvement or association in the LTTE was at a low level even though he was imprisoned on suspicion of being in the LTTE for two years (released in November 2009) and that he has not been involved in any separatist activities, I find that he does not have a profile of interest with any Sri Lankan authorities.
…
I accept there is credible evidence of serious harm being perpetrated against Tamils associated with, or perceived to be associated with, the LTTE by the Sri Lankan authorities in pre and post war Sri Lanka. However, I am not satisfied the past circumstances of the applicant, including the applicant having been detained for two years on suspicion of being in the LTTE, having trained with the LTTE and having extended family members who were former LTTE members would lead to any adverse interest or consequences for the applicant, even if this was identified on his return to Sri Lanka.
Having considered the profile of the applicant and having weighed the country information outlined above, I find that the applicant does not have a profile of interest to the Sri Lankan authorities. I find the chance he would face serious harm because of any real or perceived links to the LTTE is remote, now or in the reasonably foreseeable future. As such I find the applicant does not have a well-founded fear of persecution for this reason.[10]
[10] See Court Book at pages 243 - 244.
Mr Barnes, counsel for the applicant, in his written submissions, argues that two points arise from the Delegate’s analysis. Firstly, it was accepted that the applicant had been involved with the LTTE. Secondly, this finding was consistent with the country information available to the Delegate regarding the compulsory involvement of able-bodied Tamils, by the LTTE, in some level of military training.
In this context, the Delegate went on to analyse the more recently presented claims of involvement with the LTTE, which had led to the later imprisonment of the applicant and his mistreatment whilst imprisoned. The Delegate did not reject the claims relating to such imprisonment and mistreatment, finding that individuals suspected of some level of involvement with the LTTE had been subject to such mistreatment, by the Sri Lankan authorities in the past.
However, on the basis of its rejection of the applicant’s claim of having a more extensive involvement with the LTTE, which at the present time might have resulted in him being subject to the adverse attention if returned to Sri Lanka, the Delegate did not accept the aspect of the applicant’s profile, as he had so found it – namely, some level of involvement with the LTTE, which had led to imprisonment on suspicion in the period 2007 to 2009 – would now result in him being persecuted in Sri Lanka.
As a consequence of this finding (and other findings which are not subject to the current judicial review), the application for the relevant visa was rejected leading to referral to the IAA. As will be expanded upon, in due course, it is submitted by counsel for the applicant that there is a tension between the finding of the Delegate regarding the applicant having had some involvement with the LTTE and its rejection of his claim of more extensive involvement, which the IAA, should have been resolved by seeking further information from the applicant himself, at its review stage.
Essentially, there is a tension between the finding that the applicant’s claim that he had some level of involvement with the LTTE was credible with its rejection of his claim of more extensive level of involvement, also on a credit basis. In other words, if he was credible about one aspect of his claim regarding involvement with the LTTE, it is legally unreasonable to reject a more extensive level of involvement, also on credit grounds without seeking clarification. This tension should have been resolved by the IAA seeking further and new information from the applicant under relevant provisions of the Act.
THE IAA REVIEW
The IAA was provided with the material which was before the Ministerial Delegate. This comprised the following:
·The applicant’s first interview on arrival in Australia on 11 October 2012.
·His formal interview conducted on 1 February 2013.
·Statutory declarations provided on 4 September 2013 and 6 February 2017.
Prior to the hearing before the IAA, the legal representative for the applicant provided additional documents to the IAA for its consideration. The IAA declined to take this information into account on the basis that it did not satisfy the conditions stipulated in section 473DD of the Act in respect of there being exceptional circumstances to justify its consideration; it was not credible personal information; and it could not have earlier been provided to the Ministerial Delegate. This aspect of the IAA’s determination is not subject to the current process of judicial review.
In these circumstances, as indicated above, the focus in the current judicial review proceedings is on criticisms in how the IAA approached the Ministerial Delegate’s findings under what is contained in the IAA decision under the heading The Applicant’s LTTE Connections. The IAA did not accept that the applicant had any level of direct personal involvement with the LTTE whatsoever, either as a person who had some form of training, as the Delegate found or at a high operational level as the applicant had claimed at his PV interview.
This is the gravamen of the applicant’s claim that the decision of the IAA is vitiated by jurisdictional error on the basis of legal unreasonableness. Essentially, it is submitted by Mr Barnes that the Delegate made a determination that the applicant had been involved with the LTTE, to some degree, on the basis of its assessment of his credibility; whilst the IAA found, again on the basis of its assessment of credibility, that the applicant had no personal involvement with the LTTE at all.
In these circumstances, it is submitted that in order to exercise the jurisdiction conferred upon it the IAA should have sought further information from the applicant to enable it to make its own direct assessment of the applicant’s credit in respect of this crucial aspect of the applicant’s claim for protection.
The relevant portion of the IAA decision is in the following terms:
The applicant's evidence in his two statutory declarations was that he had no involvement with the LTTE and his oral evidence during the SHEV interview was that he was involved with the LTTE from 1995 until 2007. His reason for not disclosing his LTTE involvement sooner was because he was concerned his information would not be protected. However, that reason does not explain why the applicant didn't disclose his LTTE involvement during his counselling sessions. The letter dated 4 April 2017 from STTARS (survivors of Torture and Trauma Assistance and Rehabilitation Service) indicates the applicant had 10 counselling sessions and detailed a number of traumatic experiences including "being wrongfully accused of participating in the civil war". The applicant was represented when he completed his first statutory declaration in 2013 and again when he completed his second statutory declaration in 2017. I find it implausible and do not accept the applicant failed to disclose his LTTE involvement sooner because he feared his information would not be protected.
I did not accept the applicant's reasons for not disclosing the information sooner. The applicant's oral evidence about his purported LTTE involvement was general. In addition, I find it implausible the applicant would continue to discuss the trauma of being wrongfully accused of participating in the civil war over a period of 10 counselling sessions if it wasn't true. Based on all the evidence before me, I am of the view the applicant fabricated his claimed LTTE involvement to strengthen his claims for protection and I do not accept the claim. Prior to the SHEV interview the applicant consistently stated - and I find - that he was not involved with the LTTE but had familial connections (as discussed above) to the movement.[11]
[11] See Court Book at page 524 [79] – [80].
The IAA, as had the Delegate before it, accepted that the applicant had been detained and mistreated by the Sri Lankan authorities for 31 months between 2007 and late 2009 on suspicion of involvement with the LTTE. It was also accepted that other members of the applicant’s family had been involved with the LTTE.
However, on the basis of country information provided by the Australian Department of Foreign Affairs and Trade, the IAA found that monitoring of Tamils, by the Sri Lankan authorities had significantly reduced in recent times and, in this context, only individuals who were perceived to be a risk to the unitary Sri Lankan state were currently likely to be targeted by it. This information also indicated that the Government of Sri Lanka was currently encouraging Sri Lankan expatriates to return to the country for economic reasons.
In these circumstances, the IAA did not find that the applicant had such an extensive political profile in Sri Lanka or one would be imputed to him – on the basis that he was a Tamil, who had previously been arrested during the civil war and who had familial ties to the LTTE – to such a degree that he would be subject to adverse attention, if returned to Sri Lanka.[12]
[12] See Court Book at page 531 at [113] – [117].
Accordingly on 17 May 2019, the IAA affirmed the decision of the Ministerial Delegate not to grant the applicant a protection visa. The IAA did not seek to obtain any new information from the applicant personally in order to make any assessment of the credibility of the applicant’s various claims regarding his previous level of involvement with the LTTE.
THE GROUNDS FOR REVIEW
The applicant commenced the proceedings in this court on 14 June 2019 within time. He prepared his own grounds of review. These have recently been amended. In the amended application the applicant seeks that the decision of the IAA be quashed and the matter returned to the Authority for re-consideration. There is one ground for this application, which is as follows:
The IAA’s Decision to confirm the Delegate’s rejection of the SHEV application was affected by jurisdictional error in that the determination not to exercise the power to get new information from the Applicant pursuant to s. 473DC of the Migration Act 1958 (Cth), before reaching a different conclusion to that of the Delegate on an issue of the Applicant’s credibility [was legally unreasonable].[13]
[13] See Amended Application filed 1 August 2023.
This ground is supported by twelve particulars, which set out the various stages of his application. The relevant particulars can be summarised as follows:
·An essential integer of the applicant’s claim for protection is that he faces a real chance of suffering harm, if returned to Sri Lanka, because of his links with the LTTE.
·In his original claim for protection and prior to the interview with the Ministerial Delegate, he had indicated that he had suffered maltreatment and imprisonment, by the Sri Lankan authorities, because of their perception that he had links with the LTTE because of the activities of members of his family.
·At the interview with the Ministerial Delegate, the applicant had provided evidence of a more extensive involvement with the LTTE between 1995 and 2007, when he had been arrested by the SLA.
·He had only disclosed this information after having been reassured that this information would be protected by the Department.
·The Delegate, whilst rejecting the explanation regarding late disclosure of this involvement, nonetheless accepted that the applicant had undergone training with the LTTE between 1995 and 1996 but rejected his claim in respect of further involvement until 2007.
·In affirming this decision on 17 May 2019, the IAA similarly rejected the applicant’s explanation for not disclosing his claims of direct personal involvement with the LTTE earlier but in distinction to the Ministerial Delegate found that the applicant had never had any personal involvement with the LTTE and had made his more recent claims of extensive involvement to strengthen his claim for protection.
·At the PV interview stage, the applicant had indicated that he had joined the LTTE in 1995 and undergone training, with it, in 1997 and continued to serve in the LTTE until his arrest in 2007.
·The assertion that he had been involved in training with the LTTE from 1995 was an important part of the applicant’s claim for protection. It is therefore implicit that, given the Delegate accepted this part of the applicant’s claim, the Delegate also accepted that he was truthful in respect of this element of his claim.
·In this context, the Delegate, in distinction to the IAA, had had the benefit of observing the applicant respond to questions put to him and observing his demeanour and by necessary implication making some form of general assessment of his credibility.
·In these circumstances, the IAA should have invited the applicant to an interview with it so it could gauge his demeanour for itself before rejecting his claim of being involved in training with the LTTE, which had been accepted earlier by the Delegate.
·This omission, on the part of the IAA, was legally unreasonable and deprived the applicant of a successful review outcome.
In answer to this ground, it is the submission of Mr Kaplan, counsel for the Minister, that a fair reading of the Delegate’s reasons is that it reached the conclusion regarding the involvement of the applicant in LTTE training in the period 1995 to 1996 solely on the basis of country information available, which was totally independent of any assessment it had made regarding the applicant’s credibility in respect of the extent and level of his involvement with the LTTE.
Essentially, on the basis of the country information it had, the Delegate concluded that it was unlikely that the applicant, in the period in question, had not undergone some form of training with the LTTE, given that each Tamil household would be required to provide an able-bodied person of suitable age for such training.
In these circumstances, the finding regarding the likelihood of the applicant having had some contact with the LTTE did not depend on either an assessment of the applicant’s credit or acceptance of any other aspect of his more detailed claim of having an extensive operational and military involvement with it.
In these circumstances, Mr Kaplan submits that there was no gap in the information available to the IAA, in respect of the issue of any assessment of the applicant’s credit, which considerations of procedural fairness required it to remedy by seeking new information from the applicant. Thus, it was not legally unreasonable for the IAA to proceed in the manner in which it did.
THE JURISDICTION OF THE IAA
The High Court has definitively determined what is the nature of the jurisdiction exercised by the IAA in conducting a review of a fast track reviewable decision under Part 7AA of the Act. In Plaintiff M174/2016 v Minister for Immigration and Border Protection[14] it said as follows:
[T]he Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. The powers conferred on the Authority by s 473CC(2) then enable the Authority to make orders appropriate to give effect to the outcome of its own determination of the merits. If the Authority is not satisfied that the criteria for the grant of the visa have been met, the appropriate order for the Authority to make is to affirm the decision under review. If the Authority is so satisfied, and the Authority has found no other statutory impediment to the grant of the visa, the appropriate order for the Authority to make is to remit the decision for reconsideration by the Minister in accordance with such permissible directions or recommendations as the Authority considers are appropriate to give effect to the Authority's determination.
[14] Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [17].
However, the material to be reviewed by the IAA is mandated by various provisions within Part 7AA of the Act and the process to be followed elaborated upon in the various Divisions of this Part. Pursuant to section 473CA all fast track reviewable decisions must be referred to the IAA for its review, after an adverse decision has been made at the ministerial level.
Section 473CB sets out the material, which the Secretary of the Department[15] must provide to the IAA. It includes the reasons of the delegate; any material provided by the applicant concerned to the original decision-maker; and any other material considered to be relevant.
[15] Hereinafter referred to as “the Secretary”.
In ABT17 v Minister for Immigration & Border Protection (‘ABT17’)[16] the High Court indicated that the purpose of this provision was to ensure that the IAA in conducting its de novo considerations of the merits of the referred decision examined the same material as was before the Delegate.
[16] ABT17 v Minister for Immigration & Border Protection (2020) 269 CLR 439 at [8].
Thereafter, the jurisdictional task conferred upon the IAA is delineated by section 473CC which provides as follows:
(1)The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.
(2) The Immigration Assessment Authority may:
(a) affirm the fast track reviewable decision; or
(b)remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.
Accordingly, notwithstanding the fact that the IAA is unable to set aside a fast track reviewable decision and to substitute its own decision, it is still required to conduct a fresh hearing of the matter on its merits but on the same material as was available to the Delegate.
If it is satisfied, on this material, that the relevant criteria for the grant of the visa have not been met, it must affirm the Delegate’s decision. Otherwise, the matter must be remitted for reconsideration at the ministerial level in the light of any recommendations, which the IAA may care to make.
The procedure of the IAA and how it is to conduct its fast track review function is delineated in section 473DA, particularly what application the rules of natural justice have to fast track matters, including any requirement to refer documents to an applicant for comment. The section, which is headed Exhaustive statement of natural justice hearing rule, reads as follows:
(1)This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2)To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

Section 473DB indicates that a fast track review is to be conducted only in respect of the material referred to the IAA by the Secretary without accepting or requesting any new information or interviewing the applicant concerned. In the jargon of administrative review, the review arising under Part 7AA is to be on the papers alone and those are the papers, which were before the Delegate.
In this context, the IAA’s authority to access additional review material, to that provided to it by the Secretary, is limited and delineated exhaustively in Subdivision C of Part 7AA.
Section 473DC grants the IAA a discretion to obtain new information not previously before the Minister at time of decision if it might be relevant. Section 473DC(3) provides the IAA with a further discretion to invite an applicant to provide further information either in writing or through the medium of an interview.
The specific provisions of the section read as follows:
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
The application of this provision is central to the current application. As previously indicated, it is the submission of counsel for the applicant that the IAA’s failure to utilise this discretion in the applicant’s favour was legally unreasonable in all the circumstances prevailing.
In ABT17 the High Court said as follows in respect of the concept of new information in the context of the section:
New information, which the Authority can only get and consider in the exercise of its specific powers, comprises any communication of knowledge of facts or circumstances relating to material or documentation of an evidentiary nature which was not before the Minister when the delegate made the referred decision that the Authority itself considers might be relevant to the review in the sense that it might be capable directly or indirectly of rationally affecting assessment by the Authority of the probability of the existence of some fact about which the Authority might be required to make a finding in determining afresh whether or not to be satisfied that the criteria for the grant of a protection visa have been met. (citations removed)[17]
[17] ABT17 v Minister for Immigration & Border Protection (2020) 269 CLR 439 at [9].
In the context of the current controversy, it is necessary to point out the salient features of the provision:
·Clearly, the IAA is under no obligation or duty to obtain such information regardless of whether it is requested to do so by the applicant whose case has been referred to it or any other person. Only it can obtain the new information, it considers relevant.
·The power is discretionary and relates to information which the IAA considers might be relevant and was not before the ministerial delegate.
Section 473DE deals with what the IAA is required to do in respect of new information which it obtains, of its own volition, pursuant to section 473DC. Such information is to be referred to any referred applicant but only if it is considered by the IAA and forms part of the reason for affirming a decision. Thereafter an explanation of relevance is to be provided and comment sought.
However, the provision does not apply to generic country information or information about the class of person to which any applicant belongs [section 473DE(3)].
The exercise of the discretion provided by section 473DC is subject to the satisfaction of two cumulative but overlapping consideration,[18] provided by section 473DD. The IAA is prohibited from considering new information unless two overlapping considerations are satisfied, namely:
·The IAA is satisfied that there are exceptional circumstances sufficient to justify it considering such material; and
·The applicant concerned satisfies the IAA the new information:
o either could not have been provided to the Minister at time of decision; or
o is credible personal information not previously known and had it been known, may have affected the consideration of the claims made.
[18] BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958 at [9] per White J.
As a consequence of the Full Court decision in BMB16 v Minister for Immigration & Border Protection[19] it is clear that the function of the IAA is to evaluate, for itself, the review material provided under section 473CB together with any new information it obtains and then to either affirm the delegate’s decision or remit the decision for reconsideration, in accordance with such directions or recommendations as are permitted under the Regulations.
[19] BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 169.
Accordingly, it is open to the IAA to reach a different conclusion to the delegate in respect of matters arising in the review in question. This is because it is required to conduct a fresh merits hearing, albeit that the material available to it is restricted and largely confined to the material before the Delegate and if it does reach a different conclusion, it cannot substitute its own determination but must remit the matter back to the Ministerial Delegate.
Relevant authorities recognise that the discretion to obtain new information must be exercised in a legally reasonable manner. However, care must be taken to ensure that in assessing any issue of legal unreasonableness reference is made to the specific statutory scheme created by Part 7AA, which modifies natural justice considerations applicable to other administrative decision makers.
In CCQ17 v Minister for Immigration & Border Protection – a case dealing with the issue of whether it was legally unreasonable for the IAA not to invite comment from an applicant in respect of an aspect of the case referred to it. Justice Thawley considered that there were “no fixed categories of circumstances in which it would be legally unreasonable to consider the discretion under section 473DC.”[20] However, his Honour considered that the issue of whether the discretion to obtain new information had been unreasonably exercised was likely to be determined by reference to the issue’s attachment to a point, which had the potential to be dispositive of the review as a whole.
[20] CCQ17 v Minister for Immigration & Border Protection [2018] FCA 1641 at [42].
In BCQ16 v Minister for Immigration & Border Protection[21] Thawley J said as follows:
Part 7AA modifies (by restricting) the common law principles of procedural fairness. The analysis of what might be an unreasonable exercise of, or failure to exercise, a discretionary power contained in Part 7AA must proceed against the statutory context, which includes that modification. Whilst the legislature is taken to have intended that a discretionary power will be exercised reasonably … that which is reasonable is informed by the subject matter, scope and purpose of the legislation under which it is conferred. Part 7AA requires the Authority to review a decision and to conduct that review on the basis of the ‘review material’ and, subject to the statutory exceptions contained in Part 7AA, without obtaining ‘new information’ or affording the referred applicant a hearing. The reasonableness of an asserted failure to consider a discretionary power to disclose material to the referred applicant, and the reasonableness of the exercise of the discretion itself, must be assessed against that statutory scheme.
[21] BCQ16 v Minister for Immigration & Border Protection [2018] FCA 365 at [71].
It is implicit in all statutorily conferred discretions (including that arising from section 473DC to obtain new information) that they be both considered and exercised in a legally reasonable manner.[22]
[22] ABT17 v Minister for Immigration & Border Protection (2020) 269 CLR 439 at [3].
In DMO18 v Minister for Immigration & Multicultural Affairs[23] Thawley J set out the factors relevant to whether the power arising under section 473DC had been considered and exercised in a legally unreasonable manner. These can be summarised as follows:
·The onus is on the applicant concerned to establish whether there has been a failure to consider exercising the discretion to obtain new information and this might be established through a process of inference from the facts.
·However, it cannot be inferred by the failure alone, on the part of the IAA, to allude to the issue in its reasons.
·As indicated above, the first matter to consider is the statutory context, which in respect of fast track matters is one characterised by it being a limited form of review. In particular, the IAA is:
o required to consider the application afresh, by reference to the statutorily mandated material provided to it and that which it might obtain pursuant to express (and confined) statutory powers (including s 473DC), and to determine for itself whether the criteria for the grant of the visa have been satisfied.
·The implied condition of reasonableness arising from the discretion provided by section 473DC relates to both why and how the discretion was exercised. The first is directed towards the reasoning process of the IAA. The second towards the outcome of the process.
·In this context, compliance with the implied condition of reasonableness in the performance of the duty to review the decision requires not only that the decision to which the Authority comes on the review has an intelligible justification but also that the Authority comes to that decision through an intelligible decision-making process.
[23] DMO18 v Minister for Immigration & Multicultural Affairs [2023] FCA 61 at [42] - [43].
In Minister for Immigration & Citizenship v Li (‘Li’)[24] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked an evident and intelligible justification was liable to be characterised as an unreasonable one and therefore one which did not involve the proper exercise of the jurisdiction conferred upon the relevant decision-maker. As such, decisions lacking such an intelligible justification are also liable to be vitiated on the basis of jurisdictional error.
[24] Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75]– [76].
In Li, Gageler J considered that the authority conferred on a decision-maker by statute was subject to the deeply rooted common law principle that such authority be exercised both according to law and reason. In the case, under the heading Judging Unreasonableness, his Honour said as follows:
[R]eview by a court of the reasonableness of a decision made by another repository of power is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.’[25]
[25] Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [105].
Again, this refers to the process arising in reaching a decision – why was it made. Upon the material before the decision-maker, was the resulting decision one to which no reasonable person could come, resulting in a situation in which the relevant decision maker has made the decision in a manner so devoid of plausible justification that no reasonable person could have taken such a course.
In cases such as Minister for Immigration & Border Protection v Singh,[26] the Full Court has focussed on the outcome of the decision making process – how was the decision made. Is the outcome of the proceedings characterised by some species of caprice or arbitrariness or some other identifiable factor, which renders it legally unreasonable?
[26] Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437.
In Minister for Immigration & Border Protection v Stretton[27] Allsop CJ, as his Honour then was, indicated the difficulty arising for courts, particularly those exercising appellate or supervisory jurisdictions, of attempting to define, in a prescriptive sense, what was meant by legal unreasonableness. In his Honour’s phraseology it is a concept not amenable to minute and rigidly-defined categorisation or a precise textual formulary.[28]
[27] Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1.
[28] Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1 at [10].
This was particularly so in respect of the application of the concept to the outcome of the decision in question, particularly given that decision-makers necessarily are endowed with a certain level of freedom in which to make their decision and within such freedom, decision-makers may make different decisions, which cannot be criticised on the basis of being different.
Accordingly, the task of reviewing for jurisdictional error is not one of definition but of characterisation. Chief Justice Allsop said as follows:
The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.[29]
[29] Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1 at [11].
In summary, in determining whether an established failure to consider exercising a discretionary power was legally unreasonable, it is necessary to:
·identify the failure with precision;
·examine the terms, scope and purpose of the statutory power which the decision-maker failed to consider; and
·evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense.[30]
[30] BMV16 v Minister for Home Affairs [2018] FCAFC 90 at [80].
In Minister for Immigration and Border Protection v SZVFW[31] the High Court (Nettle & Gordon JJ) said as follows:
…legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.
[31] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [84].
They went on to indicate that the applicable standard of what was reasonable, in any given situation, was to be derived from the applicable statute but also from the general law. In this matter, although the IAA has the authority to gather new information, the applicable statutory regime does not ordinarily envisage the interview of referred applicants.
In the present matter, the relevant record of the IAA does not indicate that it specifically considered whether to seek further information from the applicant regarding his claims of involvement with the LTTE. As indicated above, I accept that it is not required to specifically do so, given the structure of Part 7AA and the nature of the review process, which it provides.
However, it still falls to this court, given the ground of review which has been propounded, to determine whether the outcome of the IAA review is legally unreasonable in all the circumstances of the matter. In particular, can it be considered legally unreasonable within the context of the statutorily created review scheme arising under Part 7AA, which restricts the capacity of the IAA to obtain further information from referred applicants.
DISCUSSION
In the present matter, each of the parties concerned place significant weight on the analysis of the plurality of the High Court (Kiefel CJ, Bell, Gageler & Keane JJ) of Part 7AA contained in ABT17. The case concerned an asylum claimant who, as in the present matter, had been interviewed by the Ministerial Delegate, who found that his claims of having been tortured were plausible and consistent with available country information, notwithstanding the fact that his delivery was hesitant and contained some inconsistencies.
However, significant though those claims were, the Delegate rejected the claim on the basis of other country information relevant to the current conditions for members of the ethnic group to which the applicant belonged. The case was referred to the IAA for Part 7AA review. It elected to listen to an audio tape of the applicant’s evidence and reached a different view as to its credibility finding, in contrast to the Delegate that the evidence provided was incredible. In these circumstances, it affirmed the Delegate’s decision but on a different basis.
The issue arising on appeal before the High Court was whether it was legally unreasonable for the IAA to have exercised its discretion not to directly interview the applicant – a form of new information – in order to make its own assessment of his credibility by direct exposure to him rather than only listening to the evidence elicited by the Ministerial Delegate and basing its conclusions on that.
In the case, the plurality found that it was legally unreasonable for the IAA not to have exercised the discretion conferred upon it to obtain new information regarding this credibility issue by interviewing the applicant himself, in order to resolve the controversy arising from the first interview regarding the truth of his claims of having been tortured.
The plurality characterised the difference, for the IAA, between listening to the interview as an aid to determine credibility and conducting its own interview as creating an informational gap, which could only be remedied by the Authority asking its own questions of the applicant concerned and thus making its own assessment of his demeanour, in order to resolve its apparent doubts about his vague and hesitant manner and the lack of detail in his claims. The failure to exercise the discretion to do so amounted to legal unreasonableness.

Essentially, as I understand the case, given that the IAA is required to conduct a fresh merits assessment of the relevant application for protection, it may be required to remedy any lacuna in the evidence available to it, in comparison to that available to the Ministerial Delegate, by obtaining evidence to remedy such a gap, because it is at a disadvantage in comparison to the Delegate in this respect.
It was accepted that the IAA had authority conferred upon it by section 473DC to act in this way and its impression of credibility so formed had the potential to constitute new information in the sense envisaged by the provision. Thereafter, it would also satisfy one of the two pre-conditions contained in section 473DD to enable it to be characterised as having arisen in exceptional circumstances, namely it could not have been available to the Delegate.
However, in my view, the plurality of the High Court also indicated that it is necessary for a court, such as this one, in conducting judicial review, where a potential issue as to the existence or otherwise of such an informational gap, vis-à-vis an applicant’s credit, to consider the overall circumstances of the case. It does not necessarily follow that because the IAA takes a different view of the credibility of an applicant to the Ministerial Delegate, on the basis of the information referred to it by the Secretary for fast track determination, that the IAA is obliged to conduct its own interview with any referred applicant.
Other information available to the IAA – such as country information – may result in credit issues not having a significant bearing on the outcome of the relevant referred hearing. It is the submission of Mr Kaplan, counsel for the Minister that this is the case in the current matter and, even if it did, its absence was not material to the outcome of the review in any event, given other findings made by the IAA.
Essentially, he contends that the IAA was not disadvantaged in its merits review task, in comparison to the Delegate because even if there was some form of information gap, regarding credit, it was not material to the outcome and was subsumed by other evidence available to the Authority.
The relevant passages of the plurality, in ABT17, in this regard, are as follows:
Compliance with the implied condition of reasonableness in the performance by the Authority of its duty to review the decision of the delegate necessitates not only that the decision to which the Authority comes on the review has an intelligible justification but also that the Authority comes to that decision through an intelligible decision-making process. Thus, as has been recognised, there can be circumstances in which the Authority can transgress the bounds of reasonableness by treating particular information as the reason or part of the reason for the decision to which it comes without first exercising its powers to get and if appropriate to consider, as new information, further information capable of being provided by the referred applicant.
Answering the question therefore requires an examination of the decision-making pathways reasonably open to the Authority in reviewing the decision of a delegate to determine for itself whether the criteria for the grant of a protection visa have been met where the review material that it is obliged to consider in making that determination leaves out information that was available to and required to be considered by the delegate.
The mere existence of an informational gap will not necessarily result in the Authority being disadvantaged in comparison with the delegate. That is because, having regard to country information and other information contained in the review material, the credibility of the referred applicant will not necessarily have a significant bearing on the Authority's determination of whether the criteria for the grant of a protection visa have been met. That is also because, having regard to country information and other information contained in the review material, how the referred applicant may have presented in the interview with the delegate will not necessarily have a significant bearing on such assessment of his or her credibility as the Authority might reasonably undertake.
To the extent that the credibility of the referred applicant might bear on whether the Authority is to be satisfied that the criteria for the grant of a protection visa have been met and to the extent that his or her appearance in an interview with the delegate might bear on his or her credibility, it would ordinarily be open to the Authority to form its own assessment of credibility taking into account such second-hand description or impression of his or her appearance as might be conveyed expressly or by implication in the statement forming part of the review material which sets out the delegate's findings of fact and refers to the evidence on which those findings were based. Taking into account any such description or impression of the referred applicant's appearance, it would ordinarily then be open to the Authority to reach an assessment of the referred applicant's credibility without any need for the Authority's assessment of credibility to coincide with the delegate's assessment of credibility.
The Minister is therefore correct to say that the Authority is not required to interview a referred applicant merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate.
However, the Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given. That is what happened in this case.[32] (citations removed)
[32] ABT17 v Minister for Immigration & Border Protection (2019) 269 CLR 439 at [20]– [25].
Justice Kerr summarised the principles arising from the plurality in ABT17 in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CRK18[33] in the following terms:
The scheme of Part 7AA of the Migration Act provides for a statutorily confined system of merits review. That confined system entirely excludes the operation of the ordinary rules of procedural fairness as would otherwise have required the IAA to hear from the Respondent before substituting for the Delegate’s finding one dependent of it having formed an adverse view of the Respondent’s credit and honesty. However as the plurality in ABT17 reconfirms nevertheless there are circumstances in which the IAA can transgress the bounds of legal unreasonableness by treating particular information as the reason or part of the reason for the decision to which it comes without first exercising its powers to get and if appropriate to consider, as new information, further information capable of being provided by a referred applicant.
[33] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CRK18 [2021] FCA 1070 at [71].
As indicated by Kerr J and as is clear from the contents of Part 7AA, particularly section 473DA, the system of independent review of decisions regarding unauthorised maritime arrivals is confined and entirely excludes the operation of the ordinary rules of procedural fairness. However, there are some circumstances in which the power conferred upon to the IAA to obtain new information can be both considered and exercised in a legal unreasonable way.
In general terms, the principles enunciated by the High Court in Li apply. Does the process relevant to the application to how the IAA approached the discretion have an intelligible justification in the circumstances applicable, which includes reference to the authorising statute.
In AWG18 v Minister for Home Affairs Greenwood J indicated that the starting point of any judicial review in respect of a decision of the IAA is for the reviewing court:
“…to recognise that the reasons of the IAA must be read not only with a view to examining the process of reasoning in reaching a state of satisfaction (or not) about particular topics and particular evidence, but also read overall as an integrated whole.”[34]
[34] AWG18 v Minister for Home Affairs [2020] FCA 744 at [81].
It is a trite but true exposition of the legal principles that the reviewing task does not entail a line-by-line analysis of the decision in question, particularly not one involving an eye keenly attuned to the perception of error at the expense of a fair reading of the reasons as a whole.[35]
[35] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
It is the submission of Mr Barnes that the Delegate found that the applicant was a witness of credit in respect of his training with the LTTE. A finding which the IAA essentially reversed without taking the opportunity to form its own view of the applicant’s credibility through observing and questioning him directly itself.
Thus, in allowing such an informational gap to arise, it was legally unreasonable for it to take the prerequisite steps available to it pursuant to section 473DC to fill that gap. Mr Barnes further contends that this omission was material and deprived his client of the potential to have a successful outcome in the case.
In my view, such a conclusion is not open when the reasons of the IAA are read in conjunction with those of the Delegate. The applicant’s initial position was that he was at risk in respect of his relationship to the LTTE arose only because the Sri Lankan authorities were likely to suspect that he was involved with it and because other members of his family were associated with the LTTE.
At the PV interview, he changed his position significantly, asserting that he had trained with the LTTE and had as a result been engaged to a serious degree with its offensive military and intelligence operations, which necessarily would result in him being targeted by the Sri Lankan authorities, if returned to that country.
The Delegate rejected this claim because it was not believed both as a consequence of the lateness of the disclosure and the Delegate’s rejection of the explanation provided as to why this was so. The IAA took a similar view of this aspect of the applicant’s claim. The Authority rejected the claim that the applicant was at risk of serious harm because of any significant level of past involvement, with the LTTE, during the Sri Lankan civil war.
Country information available to both the Delegate and the IAA indicated that individuals who did not or had not held a significant profile, in the past with the LTTE, were no longer liable to be targeted by the Sri Lankan authorities. It was on the basis of this information, in conjunction with their mutual rejection, on credit grounds, of the applicant’s claim of a high level of involvement with the LTTE, that both the Delegate and later the IAA rejected the applicant’s claim for protection.
In these circumstances, in my view, it cannot be said that the IAA was operated in an information gap vis-à-vis it and the Delegate. They reached the same operational conclusion namely that the applicant did not currently have a profile of such moment, arising from any past associations with the LTTE, to render him liable to be targeted by the Sri Lankan authorities if returned to Sri Lanka.
The guarded finding of the Delegate – couched in the context of the expression of some doubt – that given the pervasive nature of the LTTE in the area of Sri Lanka in which the applicant lived during 1995 and 1996 and its requirement that each Tamil household required at least one able-bodied person to join it – arose not from any assessment made by it of the applicant and his credibility but rather arose exclusively from the Delegate’s assessment of country information available to it. As such, in my view, the finding cannot be characterised as one based on the Delegate’s assessment of credit.
Given this state of affairs, in my view, it is apparent that the Delegate and the IAA had formed the same view regarding the credit of the applicant’s operative claim for protection, which was based on him having had extensive involvement with the LTTE up until his arrest in 2007. Both the Delegate and the IAA rejected the credibility of this claim on the same basis. Thus, in my view, it cannot be said that there was any information gap, which the IAA was required to fill by seeking new information from the applicant directly.
In these circumstances, in my view, there is a clear and intelligible reason as to why the IAA considered it unnecessary to seek further information from the applicant. It was ad idem with the Delegate regarding the credibility of the applicant regarding his involvement with the LTTE.
In conducting its merit review, it considered that he had never had a high profile with the LTTE and it had not been credible in his claim to the Delegate that he had such a profile. It also follows that the decision itself to reject the claim for protection also has a logical and intelligible rationale.
Mr Barnes contends that impliedly it must be the case that because the Delegate found the applicant had trained, in some capacity, with the LTTE, in 1995-1996, it had made a positive finding about an aspect of the credibility regarding his involvement with the LTTE.
Accordingly, there having been a positive finding about this aspect of his credibility, it was legally unreasonable for the IAA to substitute its finding about the credibility of the entirety of his claim regarding his involvement with the LTTE, particularly the claim he was a long-term and senior member of it without engaging in interviewing and questioning him directly so that it could decide itself whether if he was truthful about other aspects of his claim of involvement with the LTTE.
In my view, this overstates what arises from the plurality in ABT17. In that case, the High Court indicated that the IAA may act unreasonably, if without a good reason, if it fails to invite a referred applicant to provide new information relevant to an issue with turns on an assessment of credit, if it elects to reject an aspect of a claim, previously accepted by the Delegate as credible, without making its own assessment of credit in respect of the entirety of the evidence available.
In ABT17, in its interview with the applicant concerned, the Delegate found some aspect of the relevant claim to be credible, notwithstanding hesitancy in presentation and inconsistency in aspect of account. The IAA, in effect, listened to the same evidence, in the form of the audio recording of the interview and formed a different view of that evidence.
The plurality held this was legally unreasonable given its view that the processes, on the one hand, of listening to a witness giving evidence to another person to that involved in, on the other hand, with a direct interview and opportunity to observe the demeanour of the interviewee concerned, were inherently different. It was this difference which created what was characterised as the information gap in question, which the subsequent merits based decision-maker was required to resolve.
In this case, the Delegate and the IAA reached a different view regarding the likely level of the applicant’s involvement with the LTTE on the basis of country information which was available to both. As a consequence, there was no information gap regarding the material each had utilised to assess his credibility. The fact of the applicant’s involvement with the LTTE at a low level in 1995 and 1996 could not have had a significant bearing on the IAA’s determination that the applicant’s claim that he had been a long-term and senior member of the LTTE was incredible, a view which it shared with the Delegate.
In my view, to utilise the terminology of the plurality in ABT17, it cannot be said that the finding of the Delegate that the applicant, made on the basis of country information only, that the applicant had trained with the LTTE in 1995 and 1996 – a finding subsequently rejected by the IAA – was the factor which had either wholly and substantially led the IAA to reject the salient features of the applicant’s claim for protection.
Accordingly, in my view, it was not legally unreasonable for the IAA not to obtain fresh information from the referred applicant in order to enable it to assess the credibility of his claim that he had had a significant and long-term level of military involvement with the LTTE and ultimately reject such a claim.
In my view, it was able to make this finding independently of any determination of whether he had or had not trained with the LTTE as a consequence of being an able-bodied member of a Tamil household. This latter issue was neither a wholly nor substantially operational factor in the Authority’s finding that the applicant was not owed protection in Australia.
In my view, there was no good reason for the IAA to invite the referred applicant to give evidence about whether he had been involved in training with the LTTE because country information indicated that this was what had frequently occurred during the civil war in respect of able-bodied Tamil individuals.[36]
[36] This being the expression adopted by Stewart J in ALD19 v Minister for Immigration, Citizenship & Multicultural Affairs (No 2) [2022] FCA 1131 at [42].
This was not the operative effect of his evidence. His evidence was never that his involvement had been peripheral or minor. Rather his evidence was that he had a long and significant involvement with the LTTE, a claim both the Delegate and the IAA rejected. As such, there was no credit issue to be resolved between what the Delegate concluded and that which was concluded by the IAA.
It is Mr Kaplan’s submission that, given the statutory context created by Part 7AA, particularly its abrogation of the ordinary rules of natural justice arising from sections 473DA and 473DB, the IAA is entitled to depart from any findings made by the Delegate without informing the applicant in advance and in the absence of exercising its discretion to obtain new information from such an applicant. In this context, he relies on the following passage from the Full Court in DGZ16 v Minister for Immigration & Border Protection:[37]
In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.
[37] DGZ16 v Minister for Immigration & Border Protection (2018) 258 FCR 551 at [72].
Part of that material was the country information regarding the potential for the LTTE to coopt able-bodied Tamils for training during the civil war. The Delegate took one view of that evidence; necessarily, the IAA a different view. In my assessment this differential did not relate to an issue, in a substantial and significance sense, regarding how the Delegate and then the IAA assessed the applicant’s claims. In my view, it was not necessary for the matter to be referred to the applicant during the IAA’s review task.
In conclusion, there must be a substantial connection between an issue raised in respect of the credibility of a referred applicant and the ultimate outcome of the IAA review before it can be said that it is legally unreasonable not to seek new information in regard to the issue in question. In this regard I note what was said by the Full Court in DYK16 v Minister for Immigration & Border Protection[38] as follows:
[I]f the IAA were compelled to invite an applicant to an interview merely because his or her credibility is called into question, the result would be that the IAA would generally come under an obligation to issue an invitation, as adverse credit findings are made in the majority of cases coming before the courts. That would not only be inconsistent with the text of s 473DC(2), but would also defeat the purpose of the fast track review process.
[38] DYK16 v Minister for Immigration & Border Protection (2018) 267 FCR 69 at [74].

For these reasons, I have reached the conclusion that the application must be dismissed. The usual rule that costs should follow the event should be applied, which I will fix in the amount of $8,371.30, which is the applicable scale amount.
The orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown.
Associate:
Dated: 31 October 2023

File number(s):	ADG 212 of 2019
Judgment of:	JUDGE BROWN
Date of judgment:	31 October 2023
Catchwords:	MIGRATION – Application for judicial review – decision the Immigration Assessment Authority (IAA) – application for protection visa – citizen of Sri Lanka – fast track applicant – discretion provided under section 473DA to obtain further information from the applicant – was the decision of the IAA not to interview the applicant legally unreasonable – matters to be considered – no jurisdictional error found – application dismissed with costs
Legislation:	Migration Act 1958 (Cth) Pt 7AA, ss 36(2), 46A, 65, 473BA, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE
Cases cited:	ABT17 v Minister for Immigration & Border Protection (2020) 269 CLR 439 ALD19 v Minister for Immigration, Citizenship & Multicultural Affairs (No 2) [2022] FCA 1131 AWG18 v Minister for Home Affairs [2020] FCA 744 BCQ16 v Minister for Immigration & Border Protection [2018] FCA 365 BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 169 BMV16 v Minister for Home Affairs [2018] FCAFC 90 BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958 CCQ17 v Minister for Immigration & Border Protection [2018] FCA 1641 DGZ16 v Minister for Immigration & Border Protection (2018) 258 FCR 551 DMO18 v Minister for Immigration & Multicultural Affairs [2023] FCA 61 DYK16 v Minister for Immigration & Border Protection (2018) 267 FCR 69 Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1 Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CRK18 [2021] FCA 1070 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Division:	Division 2 General Federal Law
Number of paragraphs:	128
Date of hearing:	9 August 2023
Place:	Adelaide
Counsel for the Applicant:	Mr Barnes
Solicitor for the Applicant:	MSM Legal
Counsel for the First Respondent:	Mr Kaplan
Solicitor for the First Respondents:	Sparke Helmore
Solicitor for the Second Respondent:	Submitting notice filed save as to costs

ADG 212 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	CII19 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

ORDER MADE BY:	JUDGE BROWN
DATE OF ORDER:	31 OCTOBER 2023