CLF18 v Minister for Immigration and Multicultural Affairs

Case [2025] FedCFamC2G 417

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CLF18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 417

File number: MLG 1318 of 2018
Judgment of: JUDGE LADHAMS
Date of judgment: 25 March 2025
Catchwords: MIGRATION – Application for judicial review of a decision of the Immigration Assessment Authority – whether the Authority failed to apply the correct test in assessing whether new information is ‘credible’ for the purposes of s 473DD(b)(ii) of the Migration Act 1958 (Cth) – whether error is material – jurisdictional error established – writs issued.
Legislation:

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)

Migration Act 1958 (Cth) ss 5AA, 473CA, 473DD, 476, 477

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Rules 2024 (Cth) r 11
Cases cited:

ABH18 v Minister for Home Affairs [2020] FCA 620

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

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

BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 94; [2020] FCAFC 189

CDJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 345

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

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

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

Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Division: Division 2 General Federal Law
Number of paragraphs: 39
Date of hearing: 4 March 2025
Place: Perth (via Microsoft Teams) 
Counsel for the Applicant: Mr A Aleksov
Solicitor for the Applicant: Fairgo Legal Services
Counsel for the First Respondent: Ms K McInnes
Second Respondent: Submitting appearance, save as to costs
Solicitor for the Respondents: Clayton Utz

ORDERS

MLG 1318 of 2018

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

CLF18

Applicant
AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE LADHAMS

DATE OF ORDER:

25 MARCH 2025

THE COURT ORDERS THAT:

1.A writ of certiorari issue to quash the decision made by the Immigration Assessment Authority on 18 April 2018 (IAA18/04411).

2.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.

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)…

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AGLC
CLF18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 417
Case
[2025] FedCFamC2G 417
Decision Date

CaseChat Overview and Summary

The case of CLF18 v Minister for Immigration and Multicultural Affairs involved an applicant seeking judicial review of a decision made by the Immigration Assessment Authority (IAA) to deny him a protection visa. The applicant, an unlawful maritime arrival, had applied for a protection visa, providing new information in support of his application. The IAA affirmed the delegate's decision to deny the visa, and the applicant sought judicial review of this decision, claiming that the IAA failed to apply the correct test in assessing the credibility of the new information provided. The key issue in the case was whether the IAA applied the correct test in assessing the credibility of the new information submitted by the applicant. Specifically, the applicant argued that the IAA incorrectly assessed the new information by considering whether it was true, rather than whether it was capable of being believed, as required by section 473DD(b)(ii) of the Migration Act 1958 (Cth). The court found that the IAA did indeed apply the wrong test in assessing the credibility of the new information. The court held that in assessing whether new information is credible for the purposes of section 473DD(b)(ii), the IAA must consider whether the information is capable of being believed, not whether the information is true. The court found that the IAA's consideration of whether the new information was true, rather than capable of being believed, constituted a jurisdictional error. Consequently, the court quashed the IAA's decision and ordered the Administrative Review Tribunal to reconsider the matter according to law. The court's decision highlights the importance of the IAA applying the correct test when assessing the credibility of new information in the context of a protection visa application. The court's finding of a jurisdictional error underscores the need for the IAA to strictly adhere to the statutory requirements when evaluating new information, ensuring that the correct test is applied at the appropriate stage of the review process.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons explained below, I have found that the jurisdictional error asserted by the applicant is established. The application therefore succeeds and a writ of certiorari will issue to quash the Authority decision and a writ of mandamus will issue to require the Administrative Review Tribunal to reconsider the matter according to law. VISA APPLICATION AND ADMINISTRATIVE DECISIONS The applicant entered Australia in October 2012 and is an unlawful maritime arrival within the meaning of s 5AA of the Migration Act. The applicant applied for a protection visa on 21 October 2015. He provided a statutory declaration with his protection visa application, in which he indicated that he continued to rely on claims set out in a statutory declaration made on 16 August 2013 provided in support of an earlier protection visa application that was found to be invalid. It is not necessary to summarise the applicant’s claims for protection for the purposes of this judgment. On 22 February 2016 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection. On 10 October 2016 a delegate of the Minister refused to grant the applicant a protection visa. The matter was referred to the Authority for review pursuant to s 473CA of the Migration Act. The applicant, via his representative, provided submissions and evidence to the Authority dated 3, 10, 21 and 29 November 2016. The documents contained some new information. On 18 April 2017 the Authority affirmed the delegate’s decision not to grant the applicant a protection visa. The applicant sought judicial review of that decision and on 7 February 2018 the Federal Circuit Court made an Order by consent quashing the Authority’s purported decision and remitting the matter to the Authority for reconsideration. On 18 April 2018, upon reconsideration, the Authority affirmed the decision not to grant the applicant a protection visa and it is this decision which is the subject of the current proceeding. Given the confined nature of the ground in the judicial review application, it is not necessary to provide a detailed summary of the Authority decision. The parts of the Authority decision that are relevant to the ground of application are referred to below in the consideration of the ground. JUDICIAL REVIEW APPLICATION The applicant filed his application for judicial review on 15 May 2018. The application was made within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act. By an amended application filed on 10 February 2025, the applicant advances the following sole ground of application:The IAA failed to apply the correct test in assessing the proposed new information at Reasons [13], in that having found that the information was "capable of being believed", it went on to consider whether the information was "true", prior to determining whether to admit the information into the review material. That was to apply the wrong test: AZT22 [2023] FCAFC 90, [17]-[24].

Ratio Decidendi

Legal Principle Established

The evidence before the Court comprises an amended court book filed on behalf of the Minister on 3 February 2025. CONSIDERATION OF THE GROUND OF APPLICATIONRelevant legislation and principles in relation to assessing the credibility of new information for the purposes of s 473DD(b)(ii) of the Migration Act Section 473DD of the Migration Act provides: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. In assessing whether new information is ‘credible’ for the purposes of s 473DD(b)(ii), the Authority is to consider whether the information is capable of being believed, not whether the information is true. As Bromberg J explained in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (CSR16) at [41]-[42]:41.In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage. 42.The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEALv Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria. This construction of s 473DD(b)(ii) of the Migration Act was found to be correct by the Full Court of the Federal Court (Besanko, Mortimer and Jackson JJ) in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159 (BTW17). Justices Mortimer (as her Honour then was) and Jackson said at [72] that the consideration of s 473DD ‘can and should occur in the context of the review material already before the Authority… Assessing the proposed new material (or interview) in this context will assist the Authority in assessing relevance, in assessing how critical the additional information is to its review, and in assessing whether the preconditions laid out by Parliament can be established.’. Their Honours continued at [73]-[76]: 73. However, there comes a point at which such an assessment will go too far, and in reality will equate to, or become indistinguishable from, the Authority’s reasoning on its own – fresh – consideration of the protection visa application. That would not be the correct approach, because that is not the purpose for which the power is conferred.74.As procedural powers designed to permit the Authority in specified and limited circumstances to depart from the primary rule in s 473DB and to have available to itself more material than the delegate did, the Authority is confined to a consideration which is compatible and consistent with this purpose.75.That is why, in our opinion, Parliament has used the word “credible” in s 473DD(b)(ii) to describe the character of the information a visa applicant seeks to put forward. As Bromberg J said, “credible” means capable of being believed: it is the decision whether the information has that character, as well as the character of being “personal” to the visa applicant, which is to be made at this procedural stage, for the purpose of deciding what the scope of the review material should be, and whether there should be a departure from the primary rule.76.Particularly in a scheme premised on a review “on the papers”, there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant’s explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa applicant (which would occur in deciding if the new information were “true”). That difficulty is that the Authority is, in substance, taking into account material that is not before it on the review in determining the credibility of the visa applicant. That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority: they cannot be based on extraneous material, which is what “new information” is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 is correct.