CQA21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2025] FedCFamC2G 491
•10 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CQA21 v Minister For Immigration, Citizenship, Migrant Services And Multicultural Affairs [2025] FedCFamC2G 491
File number(s): MLG 1944 of 2021 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 10 April 2025 Catchwords: MIGRATION – application for judicial review – decision of the Immigration Assessment Authority – safe haven enterprise (subclass 790) visa – where the applicant claims that the Authority failed to exercise its discretion in getting or to get new information under section 473DC of the Migration Act 1958 (Cth) in respect of the applicant’s political involvements – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 5AAA(2), 473DB, 473DC Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
DPI17 v Minister for Home Affairs [2019] FCAFC 43
Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6Division: Division 2 General Federal Law Number of paragraphs: 70 Date of hearing: 24 March 2025 Place: Melbourne Counsel for the Applicant: Mr G Foster Solicitor for the Applicant: Sentil Solicitors Counsel for the First Respondent: Dr D Gang Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1944 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CQA21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
10 APRIL 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.
2.The name of the second respondent be amended to ‘Administrative Review Tribunal’.
3.The applicant’s application be dismissed.
4.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) dated 13 July 2021. By that decision, the Authority affirmed a decision of a delegate of the first respondent (‘the Minister’) to refuse to grant the applicant a Safe Haven Enterprise (subclass 790) visa (‘the visa’) made on 24 June 2017.
BACKGROUND
The applicant is a stateless individual of Tamil ethnicity, born in a Sri Lankan refugee camp in India to Sri Lankan refugee parents.
The applicant arrived in Australia as an unauthorised maritime arrival from India on 5 May 2013.[1] The applicant claims that he does not hold Sri Lankan or Indian citizenship and fears harm if he were to return to either country.
[1] Court book at page 155.
The applicant participated in an entry interview with an officer of the Department of Immigration and Citizenship (‘the Department’) on 20 May 2014 and explained his reasons for leaving India and seeking asylum in Australia.[2]
[2] Court book at pages 6, 14 to 15.
On 19 July 2016, the applicant was invited to apply for the visa, having been advised that the Minister ‘lifted the bar’ allowing him to do so under section 46A of the Migration Act 1958 (Cth) (‘the Act’).[3]
[3] Court book at pages 26 to 35.
On 24 June 2017, the applicant applied for the visa.[4] Annexed to the applicant’s visa application was a Statutory Declaration declared by the applicant dated 24 June 2017, in which the applicant articulated his protection claims in more detail.[5] Relevantly, for present purposes, in paragraphs 11 to 12, the applicant states the following:
11.In about April 2010, after I got my driver licence, I started working as a driver for Mr M. Karkannan after being introduced by a friend. Karkannan is a lawyer as well as being involved in the MDMK political party. I have an original reference letter from Karkannan. I know MDMK is a political party which supports Tamils but I was not involved in the party. I knew that Karkannan was famous in our district for the MDMK party but I did not know what his job was. Today I was shown some newspaper articles on the internet which said that Karkannan was the "State Youth Wing Deputy Secretary" of the MDMK. I worked for Karkannan for about six or seven months.
12. I drove Karkannan to political events. Often at events the Q Branch of internal security would also attend. Some would recognise me from the Refugee Camp and approach me at events and ask me why I was working for Karkannan and whether I was an LTTE supporter. I told them I was not an LTTE supporter. During the time I worked with Karkannan Q Branch would question me for a longer time and ask me more questions.
[4] Court book at pages 37 to 96.
[5] Court book at page 82.
At paragraph 17 of his statutory declaration, the applicant relevantly stated:
17.I cannot return to India. If I am forced to return, I will be mistreated as a Sri refugee. I will continue to be abused by Indians and police. I am afraid that I will be beaten badly by police or internal security. I cannot get protection from the authorities. I also believe that having left the country I will be targeted because the authorities will think that I was supporting the LTTE. I also believe that my rights as a refugee will be taken away including my allowance from the Government. I do not think I will be allowed to live in the Refugee Camp and will not be able to find work or a place to live.
The applicant further stated at paragraphs 20 to 21:
20.My father fled Sri Lanka in 1990 after he was detained and tortured by the Army on suspicion that he was part of the LTTE in 1987. We fled with family including my uncle … In 1995, my uncle returned to Sri Lanka. He was arrested by police and interrogated. He was shot and killed by police the same year he returned. I fear the same thing will happen to me because my family is targeted.
21.For these reasons, I seek protection in Australia. I seek protection based on my Tamil ethnicity, for an imputed political opinion as an MDMK supporter or as part of a particular social group either comprised of Sri Lankan refugees in India or young men of Sri Lankan descent in India.
On 14 April 2021, the applicant was invited to attend an interview with a delegate of the Minister, scheduled for 5 May 2021.[6] The applicant was legally represented in the proceedings before the delegate.
[6] Court book at pages 111 to 114.
On 13 May 2021, the applicant’s representative, following the interview with the delegate, provided submissions.[7] In the covering email attaching the requested documents, the applicant’s representative made written submissions regarding the possibility of repatriation from Australia to Sri Lanka in circumstances where a person does not hold citizenship for that country.
[7] Court book at pages 137 to 146.
On 1 June 2021, the applicant was notified by letter to his representatives that a delegate of the Minister had refused his application for the visa.[8] Although not relevant for present purposes, it is apparent from the delegate’s decision, that the delegate considered whether the applicant could obtain Sri Lankan citizenship such that Sri Lanka ought to be considered the receiving country for the purpose of the refugee assessment process. The delegate found that the applicant could obtain Sri Lankan citizenship and therefore assessed his claim on the basis that Sri Lanka was the receiving country.
[8] Court book at pages 148 to 172.
On 3 June 2021, the applicant was advised that the refusal decision was referred to the Authority and the referral was confirmed in writing on 4 June 2021.[9] The applicant concedes that the Authority’s review is to be conducted in accordance with Part 7AA of the Act.
[9] Court book at pages 174.
The applicant’s representative provided further submissions on 20 June 2021.[10] These submissions, largely addressed the delegate’s finding that the applicant could obtain Sri Lankan citizenship and therefore Sri Lanka ought to be considered the receiving country for the purpose of the refugee assessment. They also address the country information regarding the current risks to Tamils in Sri Lanka. Relevantly, those submissions did not address the delegate’s concerns about the lack of evidence about Mr Karkannan’s links to MDMK, including the fact that there was no such reference to that link in the letter of support submitted and relied upon by the applicant. This is particularly noteworthy in circumstances where the applicant advised the delegate that he was aware of information available which he had seen which went to this link and in circumstances where the delegate noted that no such information had been provided to them. No request was made in these submissions, for the Authority to have regard to further evidence about the applicant’s links to the MDMK or indeed to Mr Karkannan’s links to MDMK.
[10] Court book at pages 198 to 205.
By letter on 25 June 2021, the Authority advised the applicant that it had obtained new information in relation to Sri Lankan Tamil refugees in India and asylum seekers returning to India[11]. The new information was provided to the applicant and he was invited to comment on that additional material. Annexed to the letter was general country reporting on India.[12]
[11] Court book at pages 219 to 220.
[12] Court book at pages 221 to 381.
In response, by email dated 6 July 2021, the applicant’s representative made further written submissions in relation to this additional country information. As part of this response, the applicant’s solicitor summarised the applicant’s claims and relevantly in relation to the applicant’s claims to fear harm from his relationship with Mr Karkannan, the applicant’s representative said:[13]
In April 2010 after he got his driver's license, the applicant started working for Mr Karkannan as a driver after being introduced as a friend. Mr Karkannan was a lawyer and involved with the Marumalarchi Dravida Munnetra Kazhagam (MDMK) political party. A supporting reference letter is included with the application. The MDMK is a political party that supports Tamils, however the applicant was not involved in politics. He did not know what Mr Karkannan did. Recently he was shown newspaper articles which said that Karkannan was the "State Youth Wing Secretary Deputy" of MDMK. The applicant worked for him for about six or seven months. The applicant drove him to political events. The Q branch of internal security would also attend. The applicant was recognised from the refugee camp and was asked why he was working for him and if the applicant supported the LTTE. During this time, the applicant would be questioned more from the Q branch.
[13] Court book at pages 382 to 392.
Again, there was no request made in this submission for the Authority to have any further regard to information about the applicant’s association with Mr Karkannan or the MDMK or Mr Karkannan’s association with the MDMK.
On 13 July 2021, the Authority affirmed the delegate’s refusal decision and advised the applicant of its decision by email.[14]
[14] Court book at pages 398 and following.
DELEGATE’S DECISION
Relevantly, the delegate set out the applicant’s protection claims, which included the following:[15]
[15] Court book at pages 159 and following.
•In April 2010 after he got his driver’s license, the applicant started working for Mr Karkannan as a driver after being introduced as a friend. Mr Karkannan was a lawyer and involved with the Marumalarchi Dravida Munnetra Kazhagam (MDMK) political party. A supporting reference letter is included with the application.
•The MDMK is a political party that supports Tamils, however the applicant was not involved in politics. He did not know what Mr Karkannan did. Recently he was shown newspaper articles which said that Karkannan was the “State Youth Wing Secretary Deputy” of MDMK.
•The applicant worked for him for about six or seven months.
•The applicant drove him to political events. The Q branch of internal security would also attend. The applicant was recognised from the refugee camp and was asked why he was working for him and if the applicant supported the LTTE. During this time, the applicant would be questioned more from the Q branch.
•…
•Because he left India, the applicant will be targeted by authorities who think he support the LTTE.
•…
•The applicant fears harm because of:
•His Tamil ethnicity
•His imputed political opinion as an MDMK supporter
•His membership of the particular social group (PSG) – ‘Sri Lankan refugees in India’, or ‘Young men of Sri Lankan decent in India’.
In the delegate’s decision, the delegate expressly considered the applicant’s claims arising from his time as a driver for MDMK and that as a result he became of adverse interest to the Q Branch in India and was suspected of LTTE involvement.
Relevantly, the delegate summarised the additional information provided by the applicant about his claimed association with Karkannan and as a driver for MKMK, in particular how this led to him coming to the attention of Q Branch.
The delegate’s decision also records information provided by the applicant about the level of knowledge he had when in India about Mr Karkannan’s political involvement. Relevantly, the delegate made various adverse credibility findings about the applicant’s evidence in relation to these matters and stated:[16]
I have considered the statements made by the applicant and have concerns. I consider the applicant has provided contradictory information as to whether he knew what Karkannan’s role was with the MDMK. Nevertheless, the applicant claims that he attended meetings and gatherings as part of his role as a driver. I find it highly unlikely that if he attended such meetings and gatherings, that he would not know more about the individual he was allegedly driving for.
The applicant has provided an undated letter from M. Karkannan, supporting that the applicant was his driver for the period claimed. I note the letter is stamped ‘M. Karkannan B.A.B.L Advocate’. There is no reference to the MDMK. It was put to the applicant that there appears to be limited public information available online to support who Karkannan is and any such MDMK affiliation. The applicant responded that there is information available and he has seen it. I note that no supporting information has been provided in this regard.
…
There are inconsistencies in the applicant’s evidence discussed above and overall I do not consider the applicant’s claim to credible. Further, the applicant was asked why he departed India in 2013, approximately two and a half years after his role as a driver ceased, particularly considering his claim to have been experiencing harassment from the Q Branch during this time. The applicant responded that he tried to do other work however the Q Branch continued to harass him.
Overall, I am not satisfied that the applicant was affiliated with the MDMK or that he was adversely identified by the Q Branch. I find the applicant had no adverse profile with authorities in India at the time of his departure.
[16] Court book at page 161.
AUTHORITY’S DECISION
The Authority’s decision of 13 July 2021 is set out at pages 398 to 416 of the Court Book.
In its decision, the Authority set out the information that it had before it. At paragraph [6] of its reasons, the Authority noted it has the discretion to obtain relevant information new information and set out the steps it had taken to obtain information relevant to the assessment in circumstances where the Authority formed the view that the applicant was stateless and therefore his country of former habitual residence, India was his receiving country. At paragraph [7], the Authority discusses the submissions made by the applicant and its decision to have regard to that submission, either on the basis that it did not contain new information, or if it did on the basis that it was information that could not have been previously provided to the delegate and that there were exceptional circumstances which warranted having regard to it.
The Authority summarised the applicant’s claims for protection at paragraph [8] to [10] of its reasons. It is apparent from that summary, that the Authority understood that part of the applicant’s claim to fear harm arose from his work as a driver in 2010 for Mr Karkannan, that he had as a result come to the attention of Q Branch and that he feared harm as having been imputed to be a MDMK supporter.
The Authority considered the applicant’s claim to fear harm due to an imputed political opinion (LTTE and/or MDMK support) at paragraphs [31] – [42] of its reasons.
At [31], the Authority set out the applicant’s fears arising from being considered to be an LTTE and/or MDMK supporter. At [32], the Authority went on to acknowledge that Indian police (including Q Branch) monitored the Sri Lankan refugee population for LTTE militants and smugglers and that people suspected of such activity could be detained. The Authority then went on to say:[17]
There is no claim or evidence before me that the applicant was an LTTE supporter or smuggler and I find he was not.
[17] Court book at page 408.
The Authority then referred to and relied on country information to conclude that the applicant’s claims regarding being questioned by Q branch were not credible.
At [33], the Authority observed that the applicant’s claims about the MDMK shifted from it being an organisation that supported Tamils to one that supported the LTTE. Relevantly, the Authority also noted that the applicant had not provided any evidence that the MDMK was supporting the LTTE or any Sri Lankan Tamil separatist agenda. This was against the background that the LTTE was banned in India. The Authority also observed that there was no country information before it to support the applicant’s claims about the nature of the MDMK or that Karkannan had been detained or interrogated by Indian authorities for their activities.
At [34] the Authority specifically referred to the letter produced by the applicant from Mr Karkannan which makes no mention of Mr Karkannan being a politician, being involved in the MDMK, holding the position of State Youth Wing Deputy Secretary or that the applicant drove Mr Karkannan to political meetings or that the MDMK came to the attention of the police or Indian authorities. Again, the Authority noted that these matters raised considerable doubts about the credibility of the applicant’s claims.
In addition, at [35], the Authority noted that the applicant’s evidence about the reason why he left India in 2013, three years after he had stopped working for Karkannan, was unpersuasive. The Authority also set out other aspects of the applicant’s evidence which it found unpersuasive at [36] and at [37] – [38] where the Authority said:
37.If the applicant was indeed considered to be an LTTE suspect or to be involved in any LTTE or smuggling activities or pro-LTTE MDMK activities for any reason I consider it implausible that the Indian police, Q or Crime branch, would merely keep questioning and keep releasing him regularly for several years rather than refuse him to leave the camp, or arrest or detain him in a ’special camp’.
38. Overall, I do not find the applicant’s evidence persuasive.
At [39], the Authority also noted inconsistencies between the claims he made in his entry interview and the claims he now relies upon. Acknowledging the difficulties that refugee claimants face when they are interviewed immediately on their arrival, the Authority nonetheless expressed some concern about these inconsistencies and made adverse credibility findings at [40]. The Authority went on to say at [40]:
40.… I have reservations about the claimed driving work, but even may it be that the applicant worked briefly as a driver for a person named M.Karkannan I do not accept that this involved the applicant in any association with or work for the MDMK or any MDMK leaders, nor that the applicant was imputed by the Indian police or authorities with any such political association or support from this employment or was ever thereby detained or questioned about any such association or imputed political support for any party or cause by any authorities.
At [46] – [57] the Authority then considered the applicant’s claims against the refugee criteria. Relevantly at [48] the Authority said:
48.The applicant claimed he would be imputed to be an LTTE supporter because he left India. For reasons discussed above, I do not accept that the applicant was imputed with any pro-LTTE or pro-MDMK political opinion in India or otherwise had any profile of adverse interest or concern to the Indian Q Branch, Crime Branch or any other Indian police or authorities, when he departed India. …
The Authority ultimately concluded at paragraph [38] and [40] the applicant’s evidence was not persuasive, and the applicant had not given a ‘credible account’ of his circumstances in India.
The Authority also assessed the applicant did not meet the requirements of the definition of refugee and subsequently does not meet the refugee criterion in s 36(2)(a) of the Act.[18]
[18] Court book at pages 411 and following.
At paragraph [66], the Authority considered and rejected the applicant’s claims under the complementary protection provisions in section 36(2)(aa) of the Act.
The Authority therefore affirmed the delegate’s decision not to grant the applicant the visa.[19]
[19] Court book at page 416.
Statutory framework
Section 473DB(1) of the Act relevantly provided:
473DB Immigration Assessment Authority to review decisions on the papers
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
(2) Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.
Note:Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).
Section 473DC of the Act then went on to deal with the circumstances in which the Authority may obtain new information. It relevantly provided:
473DC Getting new information
(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
(c) in any other way.
PROCEEDINGS IN THIS COURT
The proceedings were commenced by way of an application for judicial review filed on 30 August 2021. The applicant filed an amended application for judicial review on 16 September 2024.
GROUNDS OF REVIEW
The applicant raises a sole ground of review in his amended application as follows:
The IAA erred when it failed to exercise its discretion to consider getting, or to get, new information under S 473DC of the Migration Act in respect of:
iv. The Applicant's involvement with the MDMK party;
v. The Applicant's involvement with M Karkannan;
vi.The operations and conduct of the MDMK political party and whether it supported LTTE in 2010 or promoted LTTE or Sri Lankan separatist agendas;
vii.Whether M Karkannan was a politician who was involved with the MDMK party and, if so, how was he so involved;
viii.Whether the Applicant was suspected or detained by Q Branch or Crime Branch or other police authorities for any reason
As a result of which the IAA made unreasonable findings which amounted to jurisdictional error.
Particulars
viii. The Applicant claimed he worked as a driver for M Karkannan, a lawyer and Deputy Secretary of the State Youth Wing of the MDMK political party, which supported Tamils in 2010; because he drove M Karkannan to political events Q Branch questioned him more intensively about being an LTTE supporter. [8] M Karkannan was the "State Youth Wing Deputy Secretary" of the MDMK political party [CB83]
ix. The IAA found 'no corroborative evidence to support his claims that the MDMK is a political party that supports, or in 2010 was supporting, the LTTE banned in India ... , or that it was promoting any LTTE or Sri Lankan separatist agenda. Country information before me does not indicate that the MDMK was one of many local and overseas Tamil groups previously or currently proscribed by the Sri Lankan Government as a te1Torist organisation for their suppo1t of the LTTE'. [33];
x. The IAA stated 'There is no country infom1ation before me to indicate that MDMK were a banned or suspect party in India or Tamil Nadu, or of any concern for pro-LTTE activism or that Karkannan or any other MDMK meeting participants were ever also detained or interrogated by Q Branch police or other Indian authorities for attendance or activities at MDMK meetings that the applicant claimed he was taken away and questioned for being at, or that any Indian or Tamil Nadu authorities or police otherwise had any adverse interest in or concern about the MDMK party or its members or leaders.' [33];
xi. The IAA stated ‘Moreover the handwritten reference letter provided purportedly from Karkannan, referred to this person, by the letterhead, as "M Karkannan, Advocate". It merely attested to the applicant having been employed as a driver from April to November 2010. It makes no mention of and lends no support to the claim that Karkannan was a politician, or involved in the MDMK party, or was its 'State Youth Wing Deputy Secretary', or that the applicant drove him to or attended any political meetings of that party or that the applicant thereby came to adverse attention for interrogation of Q Branch or any other police or Indian authorities. These matters all raise considerable doubt about the credibility of the claims.' [34];
xii. The IAA was not satisfied the applicant has given a credible account of his circumstances in India.
xiii. The IAA did not accept the applicant's claims that he was suspected by the Q Branch or Crime Branch or any other police or Indian authorities of being an LTTE supporter or smuggler or was of any other adverse interest or concern to any of them for any actual or imputed reason. [40]
xiv. The IAA did not accept the applicant was imputed with any pro-LTTE or pro-MDMK political opinion in India or otherwise had any profile of adverse interest or concern to the Indian Q branch, Crime Branch, or any other Indian police or authorities, when he departed India, nor did the IAA accept that the applicant will be an imputed LTTE supporter, or MDMK supporter, or imputed with any profile of adverse concern on return to India by Q Branch or police or any Indian authorities or any other persons due to his departure from India or for any other reason, even noting his profile as a Tamil Tiger refugee or a Tamil young man of Sri Lankan descent Sri Lanka who is stateless.' [48]
ix. Had the IAA exercised its discretion to get new information concerning
a. The Applicant's involvement with the MDMK party;
b. The Applicant's involvement with M Karkannan;
c.The operations and conduct of the MDMK party and whether it supported LTTE in 2010 or promoted LTTE or Sri Lankan separatist agendas;
d. Whether M Karkannan was a politician who was involved with the MDMK party and if so, how was he so involved;
e. Whether the Applicant was suspected or detained by Q Branch or Crime Branch or other police authorities for any reason,
the IAA would likely have obtained information to support the Applicant's claims, and would not have made the findings or conclusions it did adverse the Applicant.
xv.Accordingly, the IAA's failure to exercise its discretion to consider getting, or to get, new information, meant the IAA came to unreasonable conclusions concerning the Applicant's claims, thereby committing jurisdictional error.
It is submitted for the applicant that the claims made by the applicant arising from his relationship with Mr Karkannan and the MDMK party were material and significant and therefore the Authority should have considered clarifying these claims by exercising its powers under section 437DC.
The applicant further submits that the Authority is required to undertake its functions in Part 7AA of the Act within the bounds of legal reasonableness, including considering whether to exercise its discretion to get new information. The applicant says that, in circumstances where the Authority was not persuaded about the applicant’s claims in this regard, it could have clarified these matters by seeking new information about them from the applicant.
It is further submitted that this is not a case in which the Authority considered whether to exercise its discretion to obtain new information but decided against doing so, rather it is submitted that the Authority simply did not consider whether to exercise its discretion at all. In making this submission, the applicant relies upon the Authority’s findings at various points in its reasons that it was not persuaded or satisfied, without more information.
It is submitted that in adopting this approach, the Authority’s decision is affected by jurisdictional error.
CONSIDERATION
As stated by the plurality (Kiefel CJ, Bell, Gageler and Keane JJ) in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [3] – [4]:
3.The duty of the Authority to review a referred decision is imposed on the implied condition that the duty must be performed within the bounds of reasonableness, and the powers of the Authority to get and consider new information are likewise conferred on the implied condition that those powers must be considered and where appropriate exercised within the bounds of reasonableness.
4.The question of principle in this appeal is whether compliance with the reasonableness condition can compel the Authority to exercise its powers to get and consider new information by inviting a referred applicant to an interview in order to assess and consider his or her demeanour in the conduct of a review. The answer is that it can, and that in this case it did.
Accepting this as a matter of principle, it is submitted for the Minister that for the failure to exercise a discretion to be considered unreasonable, something more than mere failure is required. There is some merit to this submission.
The reasonableness of the Authority’s actions is to be assessed by reference to the statutory context in which the discretion to obtain and or consider new information arises. Namely, a statutory framework in which the starting point is that the Authority ought generally to consider a review on the papers, without reference to new information, subject of course to the capacity to obtain and consider new information in certain limited circumstances.
Section 473DC(2) of the Act expressly provides:
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.
In DPI17 v Minister for Home Affairs [2019] FCAFC 43, Griffiths and Steward JJ, helpfully summarised the principles which apply to the question of whether a failure to consider whether to, or the failure to exercise the discretion to get new information in section 473DC is legally unreasonable at [35] – [43]. Relevantly as noted at [37] (citations excluded):
37. … Three points deserve particular emphasis. First, legal unreasonableness is “invariably fact dependent and requires evaluation of the evidence” … Secondly, the correct approach is to apply the relevant general principles to the particular factual circumstances of the case and not to engage in an analysis which merely involves identifying particular factual similarities or differences between individual cases … Thirdly, having regard to the clear terms of s 473DA … the starting point for analysis in a case such as this which raises the ground of legal unreasonableness is not through a “natural justice lens” … Fourthly, as Thawley J correctly stated in CCQ17, merely because there has been a failure to consider the exercise of the power in s 473DC does not of itself involve error, let alone a jurisdictional error.
…
In the application, it is claimed that the Authority failed to exercise its discretion to consider getting or to get new information. There are two aspects to this claim.
The first is that the Authority did not consider whether it ought to seek further information from the applicant about the applicant’s involvement with the MDMK, Mr Karkannan or whether Mr Karkannan or the MDMK was involved with the LTTE or Sri Lankan separatist agendas and whether the applicant was suspected or detained by Q Branch or other police authorities for any reason. The second is that the Authority failed to get any such information. There are a number of difficulties with each of these propositions.
First, on a fair reading of the Authority’s reasons, it was clearly aware of section 473DC of the Act, as it in fact did get new information in relation to considering whether the applicant could be returned to India.
It is therefore open to conclude that it did not consider it necessary to get new information in relation to any other issue. But in any event, when regard is had to the specific facts in this case, the Authority’s decision not to get new information about the applicant’s association with MDMK, Mr Karkannan, or the involvement of either MDMK or Mr Karkannan with the LTTE or Sri Lankan separatist agendas or whether the applicant was suspected or detained by Q Branch or other police authorities, was not in my view, legally unreasonable.
The applicant’s claims in relation to these matters were clear. The delegate dealt with these claims and expressed concerns about the applicant’s credibility in relation to each of these claims. It was clear from the delegate’s reasons that part of the concerns the delegate had was the absence of any evidence which corroborated the applicant’s claims relating to MDMK, Mr Karkannan and interest from Q Branch or other police authorities. It was clear that the delegate was particularly concerned about the absence of such information in circumstances where the applicant said that he had some documentation which established these matters which had not been provided to the delegate.
In light of section 5AAA(2) of the Act, which requires an applicant to specify all particulars of their claims and provide sufficient evidence to establish the claim, it was open to the applicant in light of the delegates’ concerns in relation to this issue, to provide that corroborating evidence to the Authority. It is not the responsibility of the Authority to seek out the evidence which would support the applicant’s claims.
This is not a case where there was information before the delegate which was not available to the Authority, or where the Authority determined the matter on a basis not before the delegate,[20] such that it might be said to have required the Authority to provide the applicant with an opportunity to respond to those matters or at the very least, to consider whether it was necessary to do so.
[20] See Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210.
In this case, when regard is had to the background to the Authority’s consideration of this matter, the fact that the applicant was legally represented in the proceedings before the delegate and also before the Authority, the delegate’s findings and reasoning in relation to the issues relating to the MDMK, Mr Karkannan and the interest, if any, of the Q Branch and police in the applicant, there was an evident and intelligible justification for the Authority’s decision not to seek new information from the applicant in relation to these matters.
Finally, I note that the applicant’s reading of the Authority’s reasoning, which suggests that the Authority was not satisfied of certain matters and therefore could have been satisfied if it had sought further information, is not, with respect, to the point. The Authority has to have the requisite state of satisfaction on the basis of the evidence before it. But it is not the Authority’s responsibility to obtain that evidence, unless in light of the specific facts, it would be unreasonable for it to do so.
For the reasons set out above, that is not the case in this instance.
Read fairly and without a keen eye to error,[21] when the Authority said at paragraph [32] of its reasons that ‘there is no indication before me [the applicant’s] father or any other relative was suspected by Q Branch or Indian authorities of LTTE links’ the Authority was doing no more than saying that it had not reached the necessary state of satisfaction as to these matters on the evidence before it. This did not impose an obligation on it to interview the applicant about these matters. These were live issues before the delegate about which the applicant was on notice. The applicant had numerous opportunities to put before the delegate information on this and other relevant matters.
[21] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6.
Similarly, at [33], when the Authority said that the applicant ‘provided no corroborative evidence to support his claims’ about MDMK supporting the LTTE in 2020 or that it was promoting a Sri Lankan Tamil separatist agenda, it was doing no more than observing that the applicant had not produced any evidence to support these claims. Moreover, this observation must be viewed in the context of the whole of that paragraph, in which the Authority observes that the applicant’s evidence was shifting and escalating and that there was no country information which supported these claims.
At [34], when the Authority referred to the only documentary information provided by the applicant about Mr Karkannan, it noted the absence of any information in that letter about the applicant’s claims. It went on to say that the absence of any such information in that letter, ‘raise considerable doubt about the credibility of the claims’. Again, read fairly, the Authority was saying no more than, if the applicant’s claims were true, in circumstances where he has produced a letter from Mr Karkannan, one would expect it to have contained details of the other matters he now seeks to rely upon.
Then at [35], the Authority goes on to identify other aspect of the applicant’s evidence which are unpersuasive, including what led him to leave Sri Lanka three years after he stopped working for Mr Karkannan.
Furthermore at [37], the Authority reasoned that if the applicant was considered to be an LTTE suspect or otherwise involved with the LTTE, it would be unlikely that the police and or the Q Branch would simply question and then release him for several years rather than arrest and detain him.
At [39], the Authority considered the discrepancy in his statement that he had not been ill-treated in India when he first arrived and the applicant more recent claims. And having regard to these findings, the Authority then concluded at [40] that it was not satisfied that the applicant had given a credible account of his circumstances in India.
Having regard to these reasons, which are consistent with the analysis of the delegate, there is a clear and intelligible basis for the Authority’s decision not to seek any further information from the applicant under s 437CD. I find that on a fair reading of the Authority’s reasons as a whole it is open to conclude that it was aware of its ability to seek further information from the applicant but chose not to do so and that there was a reasonable and intelligible basis for doing so.
If I am wrong about that, I find that it was not necessary for the Authority to consider whether to seek any new information from the applicant about this issue. This was a claim which the applicant himself made. The delegate had raised concerns about the applicant’s credibility and in particular the absence of evidence that might support a finding in his favour in relation to the MDMK, Mr Karkannan and the Q Branch and police interest.
If it be the case, contrary to my findings above, that the Authority failed to consider exercising its ability to seek further information in relation to these matters, that failure in this case was not legally unreasonable. It was simply not required.
CONCLUSION
For each of these reasons, I find that the applicant’s ground of review is not made out.
For completeness I also note that the Minister seeks procedural orders amending the name of the first and second respondent. The applicant did not oppose the orders sought. I therefore dismiss the application with costs and make the orders set out at the commencement of these written reason.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate: C.N
Dated: 10 April 2025
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