Dmo18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The applicant, Dmo18, sought judicial review of a decision by the Immigration Assessment Authority (the Authority) which affirmed a delegate's refusal to grant a visa. The Authority had considered material provided by the Secretary and submissions from the applicant, but it declined to consider two sources of country information that predated the delegate's decision, finding no exceptional circumstances to justify their inclusion under section 473DD of the *Migration Act 1958* (Cth). However, the Authority did consider a more recent DFAT country information report, deeming it relevant and exceptional. The applicant's claims detailed past involvement with the LTTE, alleged torture and persecution by Sri Lankan authorities, and ongoing threats to himself and his family.

The central legal issue before the court was whether the Authority had afforded the applicant procedural fairness in its review process. Specifically, the court was required to determine if the Authority had failed to give the applicant adequate notice and opportunity to address issues that became determinative of his claims, particularly in light of the material the Authority chose to consider and the basis upon which it made its findings. This involved examining whether the Authority had acted upon unstated assumptions or failed to identify critical aspects of the applicant's case as issues arising for review.

The court applied the principles of procedural fairness as articulated in *SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs*. It was held that while the review process is inquisitorial, an applicant must be afforded an opportunity to address issues that are determinative of their claim. The Authority's failure to identify certain aspects of the applicant's account as issues, and its subsequent reliance on those aspects without providing the applicant notice or an opportunity to present evidence or submissions concerning them, amounted to a denial of procedural fairness. The Authority's reasoning did not indicate that these matters were in contention, and the applicant could not have reasonably anticipated that they would become critical to the outcome of the review.

The court found that the applicant was entitled to relief on the grounds that the Authority had failed to accord him procedural fairness.