CTL18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 489
•10 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CTL18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 489
File number(s): SYG 1486 of 2018 Judgment of: JUDGE LAING Date of judgment: 10 April 2025 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – construction of ss 473DD and 473FB of the Migration Act 1958 (Cth) and cl 28 of the Practice Direction – whether the IAA was required to assess new information that did not comply with the Practice Direction against s 473DD – whether the IAA’s exercise of discretion not to consider new information provided to it outside of the deadline in the Practice Direction, but nearly 2 months before the IAA’s decision, was legally unreasonable – application succeeds Legislation: Migration Act 1958 (Cth) ss 473CA, 473CB, 473DB, 473DC, 473DD, 473FA, 473FB Cases cited: DHJ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 364
DHV16 v Minister for Immigration and Border Protection [2018] FCCA 349; (2018) 331 FLR 204
EAV16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1329
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
X v Minister for Immigration [2002] FCAFC 3; (2002) 67 ALD 355
Division: General Number of paragraphs: 48 Date of hearing: 2 December 2024 and 13 February 2025 Place: Sydney Counsel for the Applicants: Mr A Aleksov Solicitor for the Applicants: Playfair Legal Pty Ltd Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Mills Oakley Second Respondent: Submitting notice, save as to costs ORDERS
SYG 1486 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CTL18
First Applicant
CTM18
Second Applicant
CTN18 (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
10 APRIL 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Immigration Assessment Authority dated 2 May 2018.
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) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
The applicants seek judicial review of a decision made by the Immigration Assessment Authority (IAA) (as it was). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicants Safe Haven Enterprise (Class XE) (Subclass 790) visas (protection visas).
BACKGROUND
The first applicant (Applicant) is a citizen of Sri Lanka of Tamil ethnicity. On 30 September 2016, he applied for protection visas with his family. The second applicant (his wife) and the other applicants (their children) applied as members of the family unit.
The Delegate refused the application on 2 February 2018. The Delegate’s decision was referred to the IAA for review on 7 February 2018.
Acknowledgement of the IAA referral was sent to the applicants by letter dated 8 February 2018. The letter was accompanied by a copy of the IAA’s Practice Direction for Applicants, Representatives and Authorised Recipients (Practice Direction). The Practice Direction noted that submissions and new information may be provided to the IAA and stated, inter alia:
21.Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submission should:
• be no longer than 5 pages,
• be easily legible using a font size of at least 11 point with standard margins of at least 2.54cm, and
• should be provided to us within 21 days of your case being referred to us by the Department.
22.We may return longer submissions or submissions that do not comply with these requirements. If we return your submission we will give you a short deadline by which to provide a revised submission that complies with this direction. If you do not comply with that deadline we will make our decision without the benefit of your submissions….
28.Any new information you give to us that we have not requested of you, must be given to us within 21 days of the date on which your case was referred to us by the Department. Any new information given to us by the Department that has not been requested, must also be given to us within 21 days of the referral...
31.Reviews will generally be completed within six weeks of referral from the Department.
On 28 February 2018, the applicants (through their representative) sought a 7-day extension in which to provide a submission. Reference was made to financial difficulties, to difficulties in accessing an interpreter and to awaiting a document from Sri Lanka requiring translation.
By email dated 28 February 2018, the IAA advised that the request for additional time had been refused. The email stated:
Your request has been considered, but not granted in this case. Under the Practice Direction for Applicants, Representatives and Authorised Recipients, submissions should be given to the IAA within 21 days of the date on which the case was referred to us by the Department. As the case was referred on 7 February 2018, this 21 day period ends today and the IAA is not satisfied that the circumstances warrant extending the time in this case. The IAA takes into account that the applicant was aware he had 21 days to provide submissions and also that he had the same representation at the first instance.
A submission was provided to the IAA later that day. The covering email indicated the applicants’ representatives were awaiting “important additional documents and translations” which would be supplied as soon as they were available. This was anticipated to occur within the following 7 days.
Documents were provided to the IAA by email on 1 March 2018. The email indicated that the applicants’ representatives had been unable to obtain translations within the 21-day limit and would endeavour to do so as soon as possible. Provision of a further document was foreshadowed.
On 9 March 2018, further documents and their translations were provided by email.
On 2 May 2018, the IAA affirmed the Delegate’s decision.
THE IAA’S DECISION
The IAA observed that a number of emails containing additional material were sent to it by a migration agent acting on behalf of the applicants. In relation to the submission sent on 28 February 2018, the IAA found that a claim regarding the Applicant’s perceived involvement in post-conflict separatism was “new information” within the meaning of s 473DD of the Migration Act 1958 (Cth) (Act). The IAA was not satisfied that either limb of s 473DD(b) of the Act were met. The IAA accordingly found that it was prevented from considering the new information (at [3]-[6]).
The IAA set out the applicants’ request for an extension of time and its refusal (at [7]-[8]). The IAA observed that, despite this, two further emails had been provided to the IAA (at [9]). The IAA summarised the new information provided with those emails (at [10]-[11]). In relation to certain translations dated 6 March 2018, the IAA observed that they had not been translated by an accredited translator as required in the Practice Direction (at [11]).
At [12]-[14], the IAA gave reasons for not being satisfied that the Applicant could not have given the new information to the IAA within the 21-day time limit. At [15], the IAA reasoned:
15.In reaching this conclusion I have considered the reasons given for the delay in submitting this material by the applicant’s representative: that the applicant was represented by the same Migration agency throughout his dealings with the Department and the IAA, that the applicant and his representative were notified of the 21 day time limit at the time the matter was referred to the IAA; that an extension of time request was refused by the IAA (but not further information was forthcoming on that day) and most importantly, that the evidence suggests that the documents were available and could have been provided to the IAA within the 21 day limit. I decline to accept any of the information sent to the IAA on 1 March 2018 or 9 March 2018…
The IAA accepted that:
(a)the applicants were citizens of Sri Lanka and that, save for the sixth applicant, they all resided in a claimed area in Sri Lanka prior to their departure for Australia (at [17]-[19]);
(b)the Applicant may have been subjected to poor treatment and roundups during the conflict (at [22]-[23]);
(c)the Applicant lived with his mother as a child, with financial support being provided by his father (at [24]);
(d)the Applicant’s father was largely absent during his life, and that he only met his father four times (at [24]);
(e)the Applicant was detained, assaulted and questioned by the Sri Lankan Army (SLA) in late 2011, following which he was required to commence a reporting regime (at [30]); and
(f)the Applicant missed a scheduled appointment of periodic reporting in 2012, following which his home was raided, he was taken away at night and he was mistreated (at [36]).
The IAA did not accept:
(a)the Applicant’s claim that an incident occurred around 2004 where a member of the SLA had thrown his identity papers on the ground and slapped the Applicant, with the Applicant fearing that he was going to be executed (at [20]-[21]);
(b)the Applicant was detained by or required to report to the Criminal Investigation Division (CID) of the Sri Lankan Police (at [30]) and [36]);
(c)the Applicant was personally suspected of being an LTTE member or imputed as such by the Sri Lankan authorities (at [31]); or that
(d)the Applicant was of interest beyond his reporting requirements when detained in 2012 ([37]).
The IAA accepted that the Applicant’s cousin was attacked and severely wounded in 2017, and that this occurred whilst his cousin was working as a taxi driver in the area claimed. However, the IAA did not accept that the attack was perpetrated by the CID or that it was indicative of the treatment of asylum seekers who return to Sri Lanka (at [38]-[40], [52]).
Having considered country information and the Applicant’s circumstances, the IAA reasoned at [51]:
51.Almost six years have passed since the applicant and his family departed from Sri Lanka. Having considered all of the information before me, I am not satisfied that the applicant or his family would face a real chance of harm arising from their Tamil ethnicity, his brief period of questioning and detention in 2011, or his failure to report in 2012, the Karuna Group or any suspicions that [were] held against his father, or any combination of these claims if returned to Sri Lanka.
The IAA accepted that the Applicant was affected by a data breach in 2014 and that he would be identifiable to the authorities at the airport as a failed or returning asylum seeker from Australia who departed Sri Lanka illegally. However, the IAA did not accept that the Applicant or his family would face a real chance of serious or significant harm on this basis. Further, the IAA found that the processes involved would be pursuant to a non-discriminatory law of general application (at [53]-[65]).
On the basis of the above, the IAA found that the applicants were unable to meet the criteria for grant of the protection visas and affirmed the Delegate’s decision (at [61]-[69]).
APPLICATION FOR REVIEW
The applicants commenced the current proceeding through an application filed on 28 May 2018, relying upon the following ground:
1.The Second Respondent failed to assess whether new information should be considered under s 473DD, comprising a new claim.
Particulars
a.The new information was given outside the twenty-one day time limit under the Practice Guidelines.
b.The Second Respondent misled the Applicant into thinking it had power to extend this timeframe.
c.The Second Respondent was wrong in law to think that the consequences of not complying with the twenty-one day time limit was to relieve it of its obligation to assess whether new information should be considered.
d.If the twenty-one day time limit under the Guidelines operated contrary to particular (c), the Guidelines are to that extent inconsistent with s 473DD, and to that extent, are invalid, with the result that the Second Respondent was wrong in law to think that the consequence of not complying with the twenty-one day time limit was to relieve it of its obligation to assess whether new information should be considered.
The applicants drew attention to features of the legislative scheme under Part 7AA of the Act, including that:
(a)decisions are referred by the Minister for review, without any step being taken by an applicant to bring the review to the IAA (s 473CA);
(b)the “review material” is supplied by the Minister (s 473CB);
(c)subject to certain exceptions, the review is done on the papers on the review material alone (s 473DB);
(d)the review is to be “efficient, quick, free of bias and consistent with Division 3 (conduct of review)” (s 473FA); and
(e)new information may be obtained by the IAA or may be provided by an applicant (ss 473DC, 473DD).
Section 473DD of the Act provided as follows:
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Section 473FB of the Act contained the power to create practice directions. It was expressed in the following terms:
473FB Practice directions
(1)The President may, in writing, issue directions, not inconsistent with this Act or the regulations as to:
(a) the operations of the Immigration Assessment Authority; and
(b) the conduct of reviews by the Authority.
(2) Without limiting subsection (1), the directions may:
(a)relate to the application of efficient processing practices in the conduct of reviews by the Immigration Assessment Authority; or
(b)set out procedures to be followed by persons giving new information to the Authority in writing or at interview.
(3)The Immigration Assessment Authority must, as far as practicable, comply with the directions. However, non-compliance with any direction does not mean that the Authority’s decision on a review is an invalid decision.
(4)If the Immigration Assessment Authority deals with a review of a decision in a way that complies with the directions, the Authority is not required to take any other action in dealing with the review.
(5)The Immigration Assessment Authority is not required to accept new information or documents from a person, or to hear or continue to hear a person at an interview, if the person fails to comply with a relevant direction that applies to the person.
The applicants submitted that two statutory implications arose from Part 7AA of the Act, namely that:
(a)it was implied by s 473DD that, if proposed new information is given to the IAA by an applicant, the IAA must (in the sense of an indispensable legal duty, or in the mandatory sense) consider whether to admit that proposed new information to the review material; and
(b)the IAA must act on the basis of all information available to it, including the most current information available to it: X v Minister for Immigration [2002] FCAFC 3; (2002) 67 ALD 355, [5]-[6], [15]-[17], [50] (X).
The applicants submitted that, as to the first proposition, it was difficult to see how s 473DD could operate if the position were otherwise. This was said to be the basis for the implication. As to the second proposition, the applicants submitted that this was an implication of long-standing practice from the nature of administrative decision making and that there was “no reason to think it is not the position under Part 7AA in relation to whatever be the review material before the IAA”.
The applicants submitted that, taking the two propositions together, Part 7AA of the Act created a situation such that, if a person furnished proposed new information at any time prior to the IAA decision, then the IAA was required to consider whether to admit it to the review material. The applicants submitted that the IAA was required to consider such new information against the statutory criteria for admission under s 473DD of the Act.
It was submitted that, within this context, the power to make practice directions in s 473FB of the Act did not include a power to establish an un-extendable time limit on the provision of new information. It was submitted that, where cl 28 of the Practice Direction uses the word “must”, this should be construed as “should” or as merely “an exhortation to applicants and their representatives” emphasising the potential consequence that the IAA may decide the review without waiting upon material beyond the 21-day period.
To the extent that cl 28 was to be construed as creating a rigid timeframe for proposed new information, the applicants submitted that it was invalid. The applicants submitted that the Practice Direction could not cut down an implied statutory right to furnish proposed new information at any point prior to decision.
I am not persuaded by the applicants’ arguments. As set out above, s 473DD of the Act proscribed consideration of new information unless certain preconditions were met. The IAA could, in certain circumstances, fall into error in failing to assess new information under s 473DD. It does not follow that there was an implied obligation upon the IAA to consider admission of information under s 473DD of the Act, where that information had not been provided in accordance with a practice direction issued under s 473FB. Nor does it follow that there was any implied “right” on the part of the applicants to have the information considered against the criteria in s 473DD, in the event of non-compliance with the Practice Direction. I am not persuaded that cases such as X, which occurred in a different statutory context, are capable of assisting the applicants in this regard.
Clause 28 of the Practice Direction required that any new information that had not been requested by the IAA “must be given” to the IAA “within 21 days” of the referral. This may be contrasted with more permissive language used elsewhere in the direction regarding when material “should be” provided. I do not accept the applicants’ submission that cl 28 should be read as simply “practice guidance” or a mere “normative expectation” that was incapable of mandating compliance. The ordinary meaning of the language used mandated compliance.
I do not accept that the IAA was unable to include a mandatory deadline regarding the provision of new information under a practice direction. Such provision arguably related “to the application of efficient processing practices in the conduct of reviews”: s 473FB(2)(a). It was certainly a “procedure… to be followed by persons giving new information”: s 473FB(2)(b). I am not persuaded that a mandatory timeframe was inconsistent with the Act because of s 473DD. As found above, s 473DD prescribed limitations upon the ability of the IAA to consider new information. Section 473FB(5) provided the IAA with a discretion not to accept new information that was non-compliant with the Practice Direction. These requirements were capable of operating alongside each other. If the IAA declined to consider new information pursuant to s 473FB(5), then the information would not be considered (whether or not it may have otherwise met the requirements of s 473DD). If the IAA were not minded to exercise its discretion under s 473FB(5) against consideration of the information, then it would still have needed to meet the requirements of s 473DD in order to be considered.
I do not accept the applicants’ suggestion at hearing that the latter exercise of discretion would be contrary to s 473FB(3) of the Act if the applicants’ interpretation of cl 28 of the Practice Direction were not accepted. As was considered in EAV16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1329 (EAV16) at [89] (Farrell J), the obligations imposed by the Practice Direction were obligations imposed upon applicants (and their representatives and authorised recipients), rather than the IAA. An exercise of discretion not to refuse consideration of information pursuant to s 473FB(5), despite non-compliance by an applicant with the Practice Direction, would not result in non-compliance by the IAA with the Practice Direction. Rather, it would be an exercise of discretion available to the IAA under s 473FB(5) in dealing with the applicant’s non-compliance.
It does not follow that matters relevant to the assessment that may have been undertaken under s 473DD were necessarily incapable of informing application of s 473FB(5). However, I am not persuaded that the IAA was obliged to assess the information against s 473DD in circumstances where it had declined to consider it pursuant to s 473FB(5). I accept that the Minister’s contrary interpretation is supported by the approach taken in DHV16 v Minister for Immigration and Border Protection [2018] FCCA 349; (2018) 331 FLR 204 at [97] (Judge Driver), DHJ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 364 at [29] (Collier J) and EAV16 at [115]. I also accept the Minister’s submission that to find otherwise would be contrary to the language of s 473FB(5).
The applicants’ suggestion that the IAA had misled them into thinking that it had the power to extend time was largely undeveloped. I do not accept that this occurred. Rather, the applicants sought an extension of time in which to make “submissions”. The IAA declined that request. Provision in the Practice Direction regarding submissions was made at cl 21, rather than cl 28 that is under consideration. Clause 21 provided that submissions “should be” provided within the 21-day limit, in contrast to the compulsory language used in cl 28. In any event, the request for additional time was refused. The IAA nonetheless had a discretion to consider new information provided outside of the 21-day period. Without further development of this part of the applicants’ complaint, I am not persuaded that it demonstrates relevant error on the part of the IAA.
Legal unreasonableness
The Minister suggested that the matter ought to be considered against the principles governing legal unreasonableness. I agree.
Non-compliance with the timeframe stipulated gave rise to a discretion on the part of the IAA, under s 473FB(5) of the Act, not to accept the new information. Concomitant was a discretion on the part of the IAA, if it so elected, to accept information provided to it outside of the timeframe stipulated. Such discretions had to be exercised reasonably.
The Minister relied upon EAV16, in which the following principles were articulated at [115]:
115.Whether a decision by the Authority under Part 7AA is tainted by legal unreasonableness must be evaluated having regard to the following:
(1)Questions of legal unreasonableness are not only fact-dependent but also informed by the subject matter, scope and purpose of the legislation in question: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [12] (Keifel CJ), [78]-[79] (Nettle and Gordon JJ) and [134]-[135] (Edelman J).
(2)The task of reviewing a decision for legal unreasonableness is not definitional but one of characterisation. The decision is to be evaluated and a conclusion reached about whether it has the character of being unreasonable having regard to the terms, scope and purpose of the statutory source of power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. Decisions have been said to be legally unreasonable because they lack sufficient rational foundation or an evident or intelligible justification, or because they are plainly unjust, arbitrary, capricious, or because they lack common sense having regard to the terms, scope and purpose of the statutory source of the power. Those descriptions are not exhaustive, they are only explanations of legal unreasonableness, of going beyond the source of power: see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [11] (Allsop CJ).
(3)Even though reasonableness is closely linked to procedural fairness, the question of legal unreasonableness is not to be approached through the lens of the principles of natural justice unaffected by statute: see BVD17 at [33] and CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [45] (Thawley J) Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 (CRY16) (Robertson, Murphy and Kerr JJ) at [67]; DZU16 at [99]; BMV16 v Minister for Home Affairs [2018] FCAFC 90 at [81].
(4)Section 437DA(1) does not preclude the implication that a power of the Authority under Part 7AA must be exercised reasonably and that is the “lens” through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Part 7AA is to be determined: see BVD17 at [33]-[34].
(5)Unfairness in a process can be relevant to whether or not there is legal unreasonableness: see CRY16 at [67].
(6)The existence of a discretion rather than a duty does not answer the question of whether or not a power is or has been exercised reasonably nor do the principles of legal unreasonableness apply only to a circumstance where the Authority has considered whether or not to exercise the power: see CRY16 at [69], [70], [72] and [82].
(7)The Authority’s ability to receive a submission is not restricted by ss 473DC or 473DD: see CLV16 at [45]-[56]. Part 7AA contains no express statutory constraint upon a party’s ability to participate in the review process by way of making submissions; nor is any such constraint necessarily to be implied: CLV16 at [92].
(8)Section 473FB(1) of the Migration Act authorises the President to issue directions in writing which are not inconsistent with that Act or regulations made under it with respect to the conduct of reviews by the Authority. Section 473FB(2) authorises directions that relate to efficient processing practices in the conduct of reviews by the Authority.
(9)The Practice Direction at [21] is not inconsistent with s 437DC or s 473DD nor is it an unreasonable exercise of the power conferred on the President by s 473FB: DGZ16 at [107].
Such principles have developed following (inter alia) cases such as Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (Li) and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (Singh). Those cases were the subject of consideration in some of the cases referred to above.
Grounds such as legal unreasonableness have high thresholds: see Li at [66] per Hayne J, Kiefel J (as her Honour then was) and Bell J, and at [113] per Gageler J (as his Honour then was). However, those thresholds may be reached where a decision is shown, within context, to be arbitrary, capricious or lacking in common sense: Li at [28] per French CJ. They may be reached where a decision lacks “an evident and intelligible justification”: Li at [76] per Hayne J, Kiefel J (as her Honour then was) and Bell J. Error may be demonstrated where a decision maker does not give active consideration to a discretion, on its merits and in context: see Singh at [66]. Where reasons are given for the exercise of a discretion, the “intelligible justification” must be found within the reasons given (rather than such other potential reasons as may be contemplated by the Court or by the Minister): Singh at [47].
As was raised with the Minister at hearing, the current matter is in some ways reminiscent of cases such as Li. In that case, the Tribunal had declined an adjournment request and proceeded to a determination. The reasons given by the Tribunal were limited and referable to the applicant having been “provided with enough opportunities to present her case” and the Tribunal not being “prepared to delay any further”. This was in a context in which reasons had been given on behalf of the applicant for seeking the adjournment (which were not rejected), the adjournment was sought for purposes central to the applicant’s ability to meet the criteria for the visa and it was not apparent why there was a sudden urgency for determination of the matter within the context of the review in question. In Singh, similarly, unreasonableness was found where the Tribunal did not give active consideration to an adjournment request, on its merits and in context at the time that it was made. This was after foreshadowing that the Tribunal would not grant any further extension of time, considering opportunities that had already been afforded to the applicant.
Cases in which legal unreasonableness is alleged must inevitably turn upon their own facts, in the particular statutory context in which they arise. The statutory context in the present matter is different to that considered in Li and Singh. The present case occurred in the context of Part 7AA of the Act. That statutory scheme provided as the general position that the review would occur on the papers, on the basis of the review material, with new information only able to be considered in limited circumstances. It contemplated the making of practice directions relating to “efficient processing practices”. Section 473FA required the IAA to pursue the objective of “providing a mechanism of limited review” that was “efficient, quick, free of bias” and consistent with the applicable provisions regarding conduct of the review. Clearly enough, efficiency in case management was contemplated by the applicable statutory scheme.
The statutory scheme also contemplated, however, new information being considered in certain circumstances. This intention was reflected in s 473FB(5) of the Act, which provided the IAA with a discretion to consider, or not consider, information that had not been provided in compliance with a practice direction. It was reflected in s 473DD, which did not prevent new information from being considered provided that certain conditions were met.
The Minister submitted that the IAA exercised its discretion under s 473FB(5) reasonably. The Minister submitted that the IAA had described the content of the new information (relative to the Applicant’s circumstances), as well as the circumstances in which the 21-day time limit had been exceeded. The IAA had then considered that the applicants and their representative were on notice of the 21-day period, that the applicants had been represented by the same representative throughout the process, and that the IAA had previously refused an extension of time. The IAA had concluded that it was not satisfied that the documents could not have been provided earlier.
I accept that the IAA summarised the content of the new information and the circumstances in which it had been provided at [7]-[15] of its decision. However, there is nothing in those paragraphs demonstrating that the IAA engaged with the probative value of the material (beyond its non-compliance with the Practice Direction) within the context of the review. It is apparent that the IAA considered, in a similar manner to the Tribunal in Li, that the applicants had been given sufficient opportunity to provide the information. The IAA was not satisfied that it could not have been provided earlier. However, it is not evident in the IAA’s reasons why the IAA, within context, considered that this was sufficient basis for declining to consider the material. This was in circumstances where the IAA had not reached a decision by the time that the information was received and did not go on to reach a decision until 2 May 2018 (nearly 2 months after the last provided information). It was in circumstances where the information was, on the face of it, highly relevant to the applicants’ claims. The new information included a document purporting to be a statement by a police officer confirming that an arrest warrant had been issued for the Applicant, as well as a claim that the Applicant’s mother had been told that her son would be arrested. This was in the context of the Applicant’s claims to face harm from the Sri Lankan authorities.
As in Li, the IAA’s reasons disclose no process of weighing the new information proposed to be relied upon against case management considerations: see Li at [80]. The IAA appears to have simply reasoned that the information was not provided in accordance with the Practice Direction and that it could have been. It is therefore not apparent if or how the IAA evaluated the exercise of discretion in its context, including by reference to the nature and probative value of the information that was proposed to be relied upon. It is therefore difficult to understand the exercise of discretion, from the reasons given and in the particular factual and statutory context in which it was exercised.
Having regard to the above in its totality, I accept the applicants’ contention that the IAA’s exercise of discretion was affected by legal unreasonableness.
CONCLUSION
The application before this Court therefore succeeds.
I will hear from the parties in relation to costs.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 10 April 2025
SCHEDULE OF PARTIES
SYG 1486 of 2018 Applicants
Fourth Applicant:
CTO18
Fifth Applicant:
CTP18
Sixth Applicant:
CTQ18
0
13
1