DYG17 v Minister for Immigration, Citizenship and Multicultural Affairs - [2024] FedCFamC2G 1431

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DYG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1431

File number(s): MLG 1918 of 2017

Judgment of: JUDGE LUCEV

Date of judgment: 19 December 2024

Catchwords: MIGRATION – Judicial review – decision of Immigration Assessment Authority – citizen of Sri Lanka – Tamil ethnicity – Christian religion – alleged fear of harm from Tamil political organisation – new information being allegation of abduction and sexual assault – whether failure to apply real chance test – whether failure to consider relevant considerations – whether failure to consider whether new information met statutory requirements – whether law misunderstood or misinterpreted in consideration of new information – whether failure to consider claim applicant specifically targeted – whether failure to consider concerning conduct of Tamil political organisation – whether failure to consider information relating to risk of torture or other serious or significant harm – whether findings unreasonable, illogical or irrational – whether findings made on basis of no probative evidence – whether exceptional circumstances to justify considering new information – whether unreasonable not to interview applicant – whether unreasonable not to give significant corroborative weight to letters from various civil and clerical officeholders – whether material jurisdictional error – writs issued

Legislation:
Migration Act 1958 (Cth) Pt 7, Pt 7AA, ss 5H, 5J, 36, 473DB, 473DC, 473DD, 473EA, 474, 476

Immigration & Emigration Act 1948 (Sri Lanka)

Cases cited:
ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439; (2020) 94 ALJR 928; (2020) 383 ALR 407

AMT15 v Minister for Immigration and Border Protection [2018] FCA 366; (2018) 74 AAR 366

APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23

Applicant M190 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1362

Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; (2020) 94 ALJR 897; (2020) 383 ALR 194

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; (2005) 80 ALJR 228; (2005) 222 ALR 411

ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196

BDF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 401

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; (1989) 63 LJR 561; (1989) 87 ALR 412

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

Djokovic vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134; (2019) 366 ALR 665

Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321

GZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123

Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550; (2020) 95 ALJR 54; (2020) 385 ALR 212

Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589; (2019) 373 ALR 569

Minister for Immigration & Border Protection v MZYTS & Anor [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547

Minister for Immigration & Ethnic Affairs v Guo and Another [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 74; (1997) 133 ALR 567; (1999) 48 ALD 481

Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1

Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220; (1999) 56 ALD 43

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2010) 253 FCR 475

Ministerfor Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (2019) 92 ALJR 780; (2018) 75 AAR 551

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 357 ALR 408; (2018) 163 ALD 1

Minister for Immigration and Border Protection v Tran [2015] FCA 546; (2015) 232 FCR 540; (2015) 150 ALD 446

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1183; (2009) 259 ALR 429; (2009) 111ALD 15

Minister for Immigration and Citizenship v SZMDS and Anor [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 180 ALR 1; (2001) 75 ALJR 1105

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 294 FLR 150; (2020) 171 ALD 477

Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) LGERA 11

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27

NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167

NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 (2018) 92 ALJR 48; (2018) 353 ALR 600

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80; (2003) 76 ALD 625

SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1

SZSZW v Minister for Immigration and Border Protection [2015] FCA 562

WZAVQ v Minister for Immigration and Border Protection [2016] FCA 188

Zentai v O’Connor (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476

Division: Division 2 General Federal Law

Number of paragraphs: 84

Date of last submission/s: 6 February 2023

Date of hearing: 6 February 2023

Place: Perth

Counsel for the Applicant: Mr A Krohn

Solicitor for the Applicant: Vrachnas Lawyers

Counsel for the First Respondent: Mr T Reilly

Solicitor for the Respondents: Australian Government Solicitor

Second Respondent: Submitting appearance, save as to costs
ORDERS

MLG 1918 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
DYG17

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE LUCEV

DATE OF ORDER:

19 DECEMBER 2024

THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Second Respondent made on 7 August 2017.
2.A writ of mandamus issue requiring the Second Respondent to re-determine its review of the decision of the Delegate of the First Respondent made on 13 December 2016, and to determine it 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 LUCEV
INTRODUCTION

Before the Court is an amended originating application for judicial review (“Amended Judicial Review Application”) lodged by the applicant, DYG17, under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) to review a decision of the Immigration Assessment Authority (“Authority” and “Authority Decision” respectively) to affirm a decision of the delegate (“Delegate’s Decision” and “Delegate” respectively) of the now Minister for Home Affairs, Immigration, Cyber Security and the Arts (“Minister”), to refuse to grant DYG17 a Class XE Subclass 790 Safe Haven Enterprise (“SHE Visa”).
The Court has before it the following materials:
(a)the Amended Judicial Review Application filed 18 July 2022;
(b)DYG17’s affidavit filed 4 September 2017 annexing a copy of the Authority Decision;
(c)the Court Book (“CB”) filed 30 May 2018 which was marked as Exhibit 1 at hearing;
(d)the affidavit of DYG17’s lawyer, Jeremy Bayliss, filed 19 July 2022 (“Bayliss Affidavit”), annexing:
(i)country information, being a copy of the Department of Foreign Affairs and Trade (“DFAT”) 2017 Country Report – Sri Lanka (“DFAT 2017 Country Report”); and
(ii)a copy of a decision of the Refugee Review Tribunal (“RRT”) dated 20 February 2013 (“RRT Decision”);
(e)DYG17’s outline of submissions filed 19 July 2022 (“DYG17’s Submissions”);
(f)the Minister’s outline of submissions filed 9 January 2023 (“Minister’s Submissions”); and
(g)the transcript of the hearing before the Court on 6 February 2023.
All references to the Migration Act in these Reasons for Judgment are to the provisions therein as they were at the time of the Authority Decision.
BACKGROUND
The general background to this matter is as follows:
(a)DYG17 is a citizen of Sri Lanka of Tamil ethnicity and of Christian religion: CB 22;
(b)DYG17 arrived in Australia at Christmas Island by boat on 4 September 2012: CB 221;
(c)DYG17 subsequently applied for the SHE Visa on 15 June 2016, claiming to fear harm as a result of his political activities with the Tamil National Alliance (“TNA”) and also threats from an opposing political party, the Tamil Makkal Viduthalai Pulikal (“TMVP”), who were trying to recruit him: CB 79-129 and 130;
(d)DYG17 was interviewed by the Delegate on 29 November 2016 (“Delegate’s Interview”), and at the Delegate’s Interview he raised a new claim, namely that he was sexually assaulted by members of the TMVP in May 2010: CB 168;
(e)on 13 December 2016 the Delegate’s Decision was to refuse the SHE Visa application: CB 162-178; and
(f)on 16 December 2016 the Delegate’s Decision was referred to the Authority for fast track review: CB 180-181.
DYG17’S CLAIMS
DYG17’s claims were “summarised” in the Authority Decision at CB 223-224 at [11] as follows:
11. The applicant’s claims can be summarised as follows:
•He is a Tamil Christian who was born and lived in the Batticaloa district in the Eastern Province of Sri Lanka. He was born a Hindu but converted to Christianity in 2008. His parents and sister remain in the family home in Batticaloa and his brother lives in India.
•In 2005 he was one of a group of 12 people who were arrested and interrogated in relation to a political assassination. He was released after about four days.
•In 2007 he joined the Tamil National Alliance (TNA) and began doing computer-based work for that party. He also assisted during election times by putting up posters and handing out pamphlets.
•In December 2008 he was approached by members of the TMVP. They told him that they were impressed with his work and wanted him to join the TMVP. He said that he wanted to consider the invitation before deciding.
•In January 2009 the men came back to his house. He was at the TNA office at the time so they went away.
•Later in 2009 he obtained work in Colombo and moved there to live. In January 2010 he met a man who said he could arrange for the applicant to study in the United Kingdom. The applicant asked the man to help arrange a visa but the application was rejected because the man provided (without the applicant’s knowledge) fraudulent documents to the Embassy.
•In early 2010 some TMVP people came to his home in Batticaloa again. His father gave them his mobile telephone number. These people tried to call the applicant several times but he did not answer them.
•In March 2010 he returned home to Batticaloa. The TMVP people came to his home and asked for his decision. He said that he did not want to join them and they said “we’ll see you.” He took this as a threat and became scared.
•About three weeks later his father was kidnapped while on his way to Colombo for business. He heard that men in a white van had taken his father away.
•In May 2010 he received a letter from the TMVP that said the TMVP would help to locate his father if the applicant joined the party. Shortly after, the applicant saw people getting out of a pick-up truck near his house. He became frightened and ran to hide at the priest’s house and then at the bishop’s house.
•In July 2010 some people came to the family home looking for him but he was not there. When he found out he left for Colombo and went into hiding at a hotel. He came home to visit his mother sometimes but this was always secretly at night.
•In August 2010 some people came to the house again but his mother said that the applicant had left. These people then began pressuring the applicant’s brother to join the TMVP.
•In 2011 the applicant applied for and was granted a visa to travel to India. However, he heard that the TMVP could locate and harm people in India as well so he decided not to go.
•In July 2012, two people came to the applicant’s hotel in Colombo and asked for him. The applicant was not there at the time but he thought the description sounded like the TMVP people who had visited him in Batticaloa. He became afraid and moved to another hotel and then departed for Australia.
•Since he came to Australia his father was left blindfolded at a bus station. His father’s captors said something like “Don’t relax. We are releasing you but we don’t leave your sons.” His mother has told him that people have come to the house looking for him and harassing his brother. His brother has now fled to India.
•People from the TMVP have continued coming to the house and have been demanding money from his father. They come every two to three months and demand information about the applicant and his brother. They have said that the applicant must come back and join them or they will cause problems for him. This has happened as recently as 2016.
•At the interview the applicant claimed for the first time that he had been severely assaulted during the May 2010 incident. He said that he was going home from work when two men asked him to go to a house to repair a computer. When he got to the house he was detained and sexually assaulted by up to three men. After the assault was over he was told that he could go but as he got dressed he spat on the floor. The men became angry and chased him but he was able to hide and then go to the priest’s house. He said that he had not mentioned this incident to anyone because he was ashamed and humiliated.
FURTHER INFORMATION FOR THE AUTHORITY
On 6 January 2017 DYG17 provided a further submission to the Authority (“DYG17’s January 2017 Authority Submissions”): CB 201-205, responding to the Delegate’s Decision, and referring to various sources of information about the situation in Sri Lanka. DYG17’s January 2017 Authority Submissions were accompanied by a statutory declaration from DYG17 dated 5 January 2017 (“DYG17’s January 2017 Statutory Declaration”): CB 196-200, which:
(a)gave a very detailed account of DYG17’s abduction and sexual assault by members of the TMVP; and
(b)indicated that the interest of the TMVP members in him involved three aspects:
(i)their knowledge of him as working for their political opponents, the TNA;
(ii)his desirability for them as a recruit because of his computer and technological skills; and
(iii)his desirability for them as a sexual object: CB 197-199 at [5]-[18].
AUTHORITY DECISION
On 7 August 2017 the Authority Decision was to affirm the Delegate’s Decision to refuse the SHE Visa application: CB 223-224.
In the Authority Decision the Authority:
(a)noted that DYG17’s representative had provided DYG17’s January 2017 Authority Submissions:
(i)part of which referred to information before the Delegate: CB 221 at [6]; and
(ii)to which was attached DYG17’s January 2017 Statutory Declaration which provided new information and further explanations of certain events and issues raised at the Delegate’s Interview: CB 221 at [6];
(b)made reference to a submission in DYG17’s January 2017 Authority Submissions that the new information therein responded to specific concerns raised by the Delegate and due to exceptional circumstances, could be considered: CB 221 at [6];
(c)observed that these concerns were put to DYG17 in the Delegate’s Interview and DYG17 was given the opportunity to comment on these concerns, that in response to this opportunity, DYG17 repeated and did not expand on the evidence previously provided to the Delegate, and that the Delegate subsequently informed DYG17 that if further information was provided, this would be taken into account: CB 221 at [6];
(d)noted that nothing in the referred material indicated that DYG17 attempted to provide further information, informed the Delegate that information was being sought, or that an extension of time to provide further information was made, and accordingly was not satisfied that exceptional circumstances existed to justify the consideration of new information: CB 221 at [6];
(e)noted that the new information contained in the January 2017 Submissions concerned extracts from two reports relating to sexual violence in Sri Lanka (“Sexual Violence Report Extracts”) and that DYG17 had only “recently come to terms with” the sexual assault, and that this new information was credible personal information which was not previously known to the Minister but if known may have affected the consideration of DYG17’s claims: CB 222 at [7];
(f)noted that DYG17 had disclosed “sexual abuse” to the Delegate during the Delegate’s Interview and was given a further opportunity to provide further information before the Delegate’s Decision was made: CB 222 at [7];
(g)noted that the Delegate accepted that sexual abuse had occurred and made no adverse findings in relation to this: CB 222 at [7];
(h)identified that DYG17’s January 2017 Authority Submissions appeared to request an interview with the Authority: CB 222 at [8];
(i)referred to s 473DB of the Migration Act which provides that subject to Pt 7AA of the Migration Act, the Authority must review decisions on the papers without interviewing an applicant, and referred to s 473DC of the Migration Act: CB 222 at [8];
(j)noted that on 24 January 2017 DFAT had published the DFAT 2017 Country Report. The Authority noted that the DFAT 2017 Country Report was not available to the Delegate, who instead considered a DFAT Country Report dated 18 December 2015, and as such the Authority was satisfied that exceptional circumstances existed to consider the DFAT 2017 Country Report as new information: CB 222 at [9];
(k)had regard to ss 5H(1) and 5(J) of the Migration Act: CB 224 at [12]-[13];
(l)had regard to and set out DYG17’s claims: CB 223-224 at [11] (see [5] above), and:
(i)accepted that DYG17 was arrested in 2005 following an assassination near the church he was attending, but found that he was not now of any interest to the Sri Lankan authorities: CB 225 at [15];
(ii)accepted that DYG17 joined the TNA in 2007 in an administrative capacity: CB 225 at [16];
(iii)accepted that from December 2008 the TMVP sought to recruit DYG17 on multiple occasions, but did not accept that members of the TMVP followed DYG17 upon his return to his hometown from Colombo in 2010: CB 225 at [17]-[19];
(iv)noted that in the Delegate’s Interview DYG17 claimed that he was the victim of a serious and sustained sexual assault in May 2010, and
(A)observed that the sexual assault had not been raised prior to the Delegate’s Interview and that there was no corroborating evidence as to the sexual assault;
(B)accepted DYG17’s explanation for not raising the sexual assault earlier in his SHE Visa application; and
(C)did not draw any adverse inferences from the delay in not raising the sexual assault or from the non-specific description of the sexual assault that DYG17 provided: CB 226 at [21];
(v)noted that DYG17 did not claim nor provide evidence to demonstrate that he was of adverse interest to the TMVP, save that he said he did not want to join the TMVP: CB 226 at [24];
(vi)noted that no other information or evidence was before it which indicated that the TMVP, or other parties, used sexual violence against persons who they were trying to recruit: CB 227 at [25];
(vii)found it more plausible that the sexual assault carried out against DYG17 was opportunistic and on an individual basis: CB 227 at [25];
(viii)found that DYG17 did not have such a unique skillset as to make him someone of ongoing particular interest to the TMVP and that it was not plausible that the TMVP would continue harassing DYG17 years later: CB 227 at [27];
(ix)was not satisfied that DYG17’s father was kidnapped by the TMVP for two years as claimed by DYG17: CB 228 at [30]-[33];
(x)accepted that DYG17, as a young Tamil Christian male, may have experienced harassment, violence and mistreatment in general in the past: CB 229 at [34], but noted that DYG17 had not claimed, and there was no evidence before the Authority to suggest that DYG17 or his family suffered any harassment, discrimination or violence due to DYG17 being Christian: CB 231 at [42];
(xi)was satisfied that DYG17 would not be at risk on return to Sri Lanka on the basis of any adverse security or criminal profile, and that there was no real chance of harm due to DYG17 returning to Sri Lanka as a returning asylum seeker: CB 231-232 at [46]; and
(xii)found that DYG17 was in breach of the Immigration & Emigration Act 1948 (Sri Lanka) (“I & E Act”) and that there was a real chance he would be charged and fined under the I & E Act, but was satisfied that DYG17 would not be treated any differently from other returnees: CB 232 at [47]-[48];
(m)did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of DYG17 being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm: CB 234 at [58]; and
(n)affirmed the Delegate’s Decision not to grant DYG17 a SHE Visa: CB 234.
AMENDED JUDICIAL REVIEW APPLICATION
The requirement for jurisdictional error

The Court is cognisant that on judicial review:
(a)the Authority’s fact-finding is not reviewable by this Court if the findings of fact were open to the Authority, and otherwise made in accordance with the law: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ, and that the weight to be given to an applicant's claims and evidence is a matter for the Authority to assess as part of its fact-finding function: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ;
(b)ought not adopt an approach to the Authority Decision which scrutinizes the Authority Decision over-zealously in search of error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Minister for Immigration and Citizenship v SZMDS and Anor [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [35] per Gummow ACJ and Kiefel J; and
(c)must read the Authority Decision fairly and as a whole: Minister for Immigration and Border Protection v Tran [2015] FCA 546; (2015) 232 FCR 540; (2015) 150 ALD 446 at [24] per Jagot J; WZAVQ v Minister for Immigration and Border Protection [2016] FCA 188 at [55] per Barker J.
For present purposes it otherwise suffices to observe that the Court may set aside a decision of the Authority upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
Legislative Provisions
Provisions of the Migration Act of particular relevance to the grounds of the Amended Judicial Review Application include the following:
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.
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 in any other way.
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.
Grounds
The Amended Judicial Review Application contains three grounds. The grounds are dealt with further below, first dealing with ground 2 (set out at [13] below), then ground 3 (set out at [42] below), followed by ground 1 (set out at [61] below) (this was the order in which DYG17 dealt with the grounds at hearing, while the Minister dealt with the grounds seriatim).
Ground 2 – alleged error of law
Ground 2 as amended (with strikethroughs and underlining omitted) is as follows:
2.The Authority erred in not finding that the First Respondent fell into jurisdictional error in that it misunderstood or misinterpreted the law.
Particulars
(a)The Authority did not consider whether new information in the Applicant’s statutory declaration dated 5 January 2017 “was not, and could not have been, provided to the Minister before the Minister made the decision under section 65” within the meaning of section 473DD(b)(i) of the Act, or was “credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims” within the meaning of section 473DD(b)(ii). The Authority was obliged to consider whether new information met section 473DD(b)(i) or 473DD(b)(ii) before considering there were exceptional circumstances to justify considering the new information pursuant to section 473DD(a), but did not do so. (Decision and Reasons, [8]; cf. AUS17 v, Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494)
(b)The Authority did not apply the “real chance” test required by sections 5H, 5J, 36(2)(a) and 36(2)(aa) of the Act, shown by its critical finding that “… I consider it is more plausible that the sexual assault was carried out on an opportunistic and individual basis.” (Decision [25], CB 227, Emphasis added.)
Ground 2 – particular (a)
DYG17’s submissions
In relation to particular (a) of ground 2 DYG17 submitted that Authority erred because, in determining whether to consider “new information” in the January 2017 Statutory Declaration, it did not consider the requirements of s 473DD(b) of the Migration Act before the requirements of s 473DD(a), and was in error for the following reasons:
(a)the Authority noted that DYG17’s January 2017 Statutory Declaration contained new information (about DYG17’s experience of abduction and sexual assault by members of the TMVP, and the motivations for the attack), but said that there were not “exceptional circumstances to justify considering the new information” therein. This was a finding that the new information did not meet the requirements of s 473DD(a) of the Migration Act, and could not be considered: CB 221 at [6];
(b)before determining whether there were “exceptional circumstances to justify considering the information” pursuant to s 473DD(a), however, the Authority was obliged first to consider – but did not do so - whether new information “was not, and could not have been, provided to the Minister before the Minister made the decision under section 65” within the meaning of s 473DD(b)(i) of the Migration Act, or was “credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims” within the meaning of s 473DD(b)(ii) of the Migration Act;
(c)in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196 (“AUS17”) at [10]-[12] per Kiefel CJ, Gageler, Keane and Gordon JJ, the High Court explained that in order to assess whether exceptional circumstances exist under s 473DD(a) of the Migration Act, the Authority must first consider whether the situation meets the requirements of s 473DD(b) of the Migration Act (emphasis in DYG17’s Submissions; footnotes omitted):
10.Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).
11.Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
12.The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).
(d)had the Authority considered the question, it must have found that the new information in the DYG17’s January 2017 Statutory Declaration met the requirements of s 473DD(b)(ii) of the Migration Act, as the information was:
(i)credible (in the sense of not being inherently unbelievable): CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (“CSR16”) at [40]-[43] per Bromberg J, approved in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 294 FLR 150; (2020) 171 ALD 477 (“BTW17”) at [62] per Mortimer and Jackson JJ;
(ii)personal (being about DYG17’s situation): BDF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 401 (“BDF17”) at [74] per Kenny J;
(iii)not previously known (to the Minister): Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 (2018) 92 ALJR 48; (2018) 353 ALR 600 (“Plaintiff M174/2016”) at [34] per Gageler, Keane and Nettle JJ; and
(iv)had it been known, as information about DYG17’s threats, abduction and assault by the TMVP, and further detail of his claims, it may very well have affected the consideration of his claims. Specifically, it may have affected the Authority’s consideration of the question whether DYG17 had been personally or merely opportunistically targeted by the TMVP as a result of a combination of sexual and other personal qualities, and the effect that this may have had on assessing whether there was a real chance of future harm; and
(e)the Authority therefore omitted a necessary step in applying s 473DD of the Migration Act, when it considered only the question of “exceptional circumstances” under s 473DD(a) of the Migration Act without considering the questions posed by s 473DD(b) of the Migration Act. It thus failed to consider a mandatory relevant consideration, in a way which may well have affected the Authority Decision. The error was therefore material and jurisdictional: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [29]-[31] per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (2019) 92 ALJR 780; (2018) 75 AAR 551 (“SZMTA”) at [44]-[45] per Bell, Gageler and Keane JJ; Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; (2020) 94 ALJR 897; (2020) 383 ALR 194 at [4] per Kiefel CJ and Gageler J.
Minister’s submissions
In relation to particular (a) of ground 2 the Minister submitted that:
(a)while it appears that the Authority did not first consider s 473DD(b)(ii) of the Migration Act: CB 221 at [6] as required by AUS17 at [11]-[12] per Kiefel CJ, Gageler, Keane and Gordon JJ, DYG17 has not discharged his onus of showing that such an error was material: MZAPC at [39] per Kiefel CJ, Gageler, Keane and Gleeson JJ JJ;
(b)DYG17’s January 2017 Statutory Declaration further describes the circumstances of the sexual assault, but the Authority accepted DYG17’s account of the sexual assault;
(c)DYG17’s submissions claim that the information in DYG17’s January 2017 Statutory Declaration may have affected the Authority’s conclusion that DYG17 was not targeted by the TMVP and the assault on him was opportunistic. While DYG17’s January 2017 Statutory Declaration speculated as to reasons why the TMVP or perpetrators might be interested in him, DYG17 had similarly so speculated before the Delegate, as the Authority noted: CB 226 at [20];
(d)the speculations in DYG17’s January 2017 Statutory Declaration are essentially a submission in response to the Delegate’s Decision and the information in it rather than it being “new information”. Indeed they were repeated in DYG17’s January 2017 Authority Submissions;
(e)on a fair reading the Authority considered DYG17’s submissions: CB 221 at [5], and then rejected the speculations in them about why the TMVP or the perpetrators might have a continuing interest in DYG17 as the Authority found that:
(i)the assault was not a targeted attack: CB 227 at [25];
(ii)the TMVP had no continuing interest in him: CB 227 at [27]; and
(iii)the perpetrators of the assault also had no further interest in DYG17: CB 227-228 at [29]; and
(f)DYG17 has accordingly not discharged his onus of showing a realistic possibility that the Authority could have made a different decision had it first considered s 473DD(b)(ii) of the Migration Act in relation to DYG17’s January 2017 Statutory Declaration.
Consideration – ground 2 – particular (a)
DYG17 complains that in the Authority Decision at CB 221 at [6] the Authority failed to consider either of the two placitas in s 473DD(b) of the Migration Act before considering the “exceptional circumstances” requirement in s 473DD(a) of the Migration Act, contrary to the proper approach outlined in AUS17. At CB 221 at [6] the Authority said that:
The submission attaches a statutory declaration by the applicant that provides new details and explanations of events and issues that were raised at the interview with the delegate on 29 November 2016 (the interview). This information was not provided to the delegate before the decision was made and is new information. The submission asserts that as it responds to specific concerns raised by the delegate “in the decision record”, there are exceptional circumstances to justify considering it. However, I note from the interview that these same specific concerns were put to the applicant before the conclusion of the interview and he was invited to comment on the concerns. The applicant repeated but did not expand on the evidence that he had already provided to the delegate. The delegate then told the applicant that if he provided any further information before the decision was made it would be taken into account. There is nothing in the referred material to indicate that the applicant attempted to provide any further information, told the delegate that information was being sought or that he required any extension of time in which to provide any information. I am satisfied that the applicant was put on notice at the interview that the delegate had significant concerns about aspects of his claims and evidence that are now addressed in this new information, but that he did not address these concerns at the interview or in the 14 days before the decision was made. I am not satisfied that there are exceptional circumstances to justify considering this new information.
The High Court considered the nature of the procedural duties under s 473DD of the Migration Act in AUS17 and held that performance of the procedural duty in s 473DD of the Migration Act requires:
(a)the Authority:
(i)first, to assess new information against the criteria specified in ss 473DD(b)(i) and (ii) of the Migration Act; and
(ii)if satisfied that one or both criteria are met, to take the outcome of that assessment into account in its assessment of exceptional circumstances under s 473DD(a) of the Migration Act: AUS17 at [11]-[12] per Kiefel CJ, Gageler, Keane and Gordon JJ and [23] per Edelman J; and
(b)that if neither criterion under s 473DD(b) of the Migration Act is met, that the Authority is prohibited from considering the new information and that there is no need to assess that information against the criterion in s 473DD(a) of the Migration Act: AUS17 at [11] per Kiefel CJ, Gageler, Keane and Gordon JJ and [23] per Edelman J.
The Authority Decision pre-dated the judgment in AUS17. Unsurprisingly therefore the Authority did not express its findings precisely in accordance with AUS17. The Court notes, however, that no “formulaic consideration” of s 473DD of the Migration Act was required: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 (“APH17”) at [79] per Markovic J; ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847 (“ARO17”) at [64] per Wigney J.
In CSR16 at [41]-[42] per Bromberg J the Federal Court observed as follows:
41In 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.
42The 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” (VEAL v 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.

Albeit in the context of whether an applicant had been afforded procedural fairness when the then Refugee Review Tribunal failed to inform the applicant of allegations contained in an unsolicited letter to which that Tribunal had access, but which it explicitly said it placed no weight upon, a unanimous High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; (2005) 80 ALJR 228; (2005) 222 ALR 411 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said as follows:
“Credible, relevant and significant” must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is “credible, relevant and significant” are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.
In BTW17 at [72]-[77] per Mortimer and Jackson JJ the plurality in the Full Court of the Federal Court said as follows:
72Just as when a Tribunal decides whether to receive evidence or information, the exercise of these powers can and should occur in the context of the review material already before the Authority, and on which according to the primary rule it should conduct its review. Whether to invite a person to an interview, whether to “get” new information of its own motion, or whether to accept “new information” proffered to it by a visa applicant — in all these circumstances the Authority is entitled to reflect on and assess the review material already before it — but for the purpose of deciding whether to depart from the primary rule and, importantly, bearing in mind its function of considering the protection visa application afresh and for itself. 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. To take an obvious example from the suite of provisions — in order to decide if new information could have been put before the delegate, the Authority is likely to have to consider what was put before the delegate.
73However, 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.
74As 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.
75That 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.
76Particularly 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 [v Minister for Immigration and Border Protection [2018] FCA 474] is correct.
77Viewed in its context, as Bromberg J identified at [42], the terms of s 473DD(b)(ii) operate as a filter, which the Authority is required to apply to “new information” proposed to be presented by a visa applicant. The subsection sets a threshold, requiring a visa applicant to satisfy the Authority the new information has that character, or, if it does not have that character, that it was not and could not have been provided to the Minister or her or his delegate prior to the s 65 decision (s 473DD(b)(i)). In either case the Authority must still be satisfied there are “exceptional circumstances” justifying including the new information in the material to be considered by the Authority on its review. Considering s 473DD as a whole, there is no basis to suppose Parliament intended some kind of intensive and final analysis of the probative value of new information to occur within the confines of s 473DD(b)(ii). As the Full Court observed in BDY18 [v Minister for Immigration and Border Protection (2020) 273 FCR 170; [2020] FCAFC 24] at [23]–[26], there is some overlap, and the factors in (b) may well inform the factors in (a).
There can be no doubt that the Authority erred by misunderstanding or misinterpreting the law by failing to consider whether the requirements of one or other, or both, of the two placitas of s 473DD(b) of the Migration Act were met, or not, before determining whether there were “exceptional circumstances” to warrant the consideration of new information under s 473DD(a) of the Migration Act. There was simply no consideration of the requirements of s 473DD(b) of the Migration Act in the Authority Decision, and in particular at CB 221 at [6].
The issue then becomes whether the error was material, and therefore jurisdictional: MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ; SZMTA.
DYG17 made a claim about the sexual assault for the first time at the Delegate’s Interview, and in the Delegate’s Decision the Delegate said that:
The applicant also claims that he was detained and sexually assaulted by members of the TMVP. The applicant did not raise this claim until the Protection Visa interview conducted on 29 November 2016. The applicant stated that he was embarrassed about being sexually assaulted and had not told anyone else about the incident. I found the applicant’s testimony with regard to the sexual assault to be reasonably spontaneous and I am prepared to accept that this event did occur, and I accept that it is reasonable that it was difficult for the applicant to talk about. However, in light of my assessment above I find that this incident was likely an isolated or opportunistic event and I do not accept that it was linked to the TMVP systematically targeting him or attempting to forcibly recruit him.
In DYG17’s January 2017 Statutory Declaration at CB 198 at [11]-[12] DYG17 said that:
11. It is difficult for me to go into further details about this incident. After urinating on me both of the men used me in many ways that words cannot describe. I was raped by the two men in front of the third man who remained sitting and smoking on the couch. I am unable to express further details about this. The pain was immense. I screamed and it was not long before I passed out. After about one hour the two men were finished and my hands were released. I heard them offer my body to the third man. The man on the couch said that he was not interested.
12. When I felt strong enough I grabbed my clothing which was on the floor nearby. The men continued to watch and laugh at me. One of the men sarcastically told me to go and report what has happened to the police. He threatened me by saying that if I do so they will publish everything. I quickly realised that my abuse end sexual assault had been recorded on the HP laptop. They had also taken photographs of me on their mobiles. The men told me to go home, take a Panadol, have a sleep and everything would be alright. As a result I had to keep silent about the abuse I suffered. If I start to make action they will release all the videos and photographs to the public. It is upsetting to think about what they did to me. I still suffer from regular flashbacks and nightmares.
The Court notes that in DYG17’s January 2017 Authority Submissions it was said at CB 205 that:
He fears that he is vulnerable to further attack and extortion if returned to Sri Lanka because the TMVP hold power over him because of these recordings and have threatened to use these against him in the past.
In the Authority Decision at CB 227 at [25] the Authority dealt with the sexual assault as follows:
I also note that there is no information or evidence before me that indicates that the TMVP or other parties used sexual violence against persons who they were trying to recruit; rather, the information in the referred material indicates that sexual violence was used against opponents or persons who had come to adverse attention for other reasons. I do not accept that a person with the applicant’s limited profile would be identified for such extreme violence and I consider it is more plausible that the sexual assault was carried out on an opportunistic and individual basis. While the perpetrators may have been involved with the TMVP, I do not accept that the assault was part of an ongoing or targeted attack on the applicant.
At CB 227 at [27] the Authority said that:
I have accepted that the applicant was the subject of a serious sexual assault and I also accept that he was scared and fled to Colombo.
The Authority thus accepted that DYG17 had been the victim of a serious sexual assault even without recourse to the information contained in DYG17’s January 2017 Statutory Declaration. It is not, however, apparent that any information as to the actual intimate and graphic detail of the sexual assault and associated activities was before the Authority, albeit that both the Authority and the Delegate have accepted that there was a serious sexual assault, accompanied, at least in the Authority’s view: CB 225 at [25], by extreme violence.
The graphic detail of the sexual assault and the existence of the recordings were however new information which was “credible personal information which was not previously known” to the Minister: Migration Act, s 473DD(b)(ii). The question then becomes whether it was information which, if considered by the Authority, “may have affected the consideration of … [DYG17’s] claims”: Migration Act, s 473DD(b)(ii). The Court observes that what the Authority meant by “extreme violence” is not apparent from the Authority Decision. It cannot, for example, have taken into account some of the circumstances of aggravation, for example, being urinated upon and filmed, that are claimed by DYG17, because it made its “exceptional circumstances” decision at CB 221 at [6] by considering only the procedural history and not the new information. In the Court’s view the nature of the new information, going as it does to the nature and extent of the sexual assault, is such that it might have caused the Authority to pause and further consider its decision, and, such is the nature of the information, that it is possible that the Authority may have reached a different outcome had it considered the new information. In those circumstances the test for materiality is met: MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ; SZMTA, and the error made is a jurisdictional error.
It follows that particular (a) of ground 2 establishes jurisdictional error in the Authority Decision.
Ground 2 – particular (b)
DYG17’s submissions
In relation to particular (b) of ground 2 DYG17 submitted that the Authority focused on the wrong legal test, when it made the critical finding that it was “more plausible that the sexual assault was carried out on an opportunistic and individual basis”: CB 227 at [25], for the following reasons:
(a)DYG17 met the requirements for protection under s 36(2)(a) of the Migration Act (as interpreted by ss 5H and 5J of the Migration Act) if he had “a real chance” of suffering persecution, or under s 36(2)(aa) of the Migration Act if he had a real risk (which means the same as a “real chance”) of suffering significant harm;
(b)following Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; (1989) 63 LJR 561; (1989) 87 ALR 412 (“Chan”), a real chance of persecution under ss 5H and 5J of the Migration Act or a real risk of significant harm under s 36(2)(aa) of the Migration Act is sufficient to establish a claim for protection. A real chance is one that is not remote, regardless of whether it is less or more than fifty per cent. A “real chance” thus may be small: Chan. It is because the intention of s 36(2)(a) and 36(2)(aa) of the Migration Act is to give protection against serious or significant harm that, even if the Authority has great doubt about whether a person is at risk, the Authority was required to find that DYG17 met the requirements for protection if there was a small but real chance of suffering such harm;
(c)the Authority’s reasoning that, “I consider it is more plausible that the sexual assault was carried out on an opportunistic and individual basis”: CB 227 at [25] (emphasis added), shows an application of a standard of what is more believable – or more likely to be true – rather than an approach to fact finding informed by the requisite legal test of a “real chance”; and
(d)there may be a real chance that the sexual assault was a targeted attack, even if it was “more plausible” that it was opportunistic. The Authority’s approach to making findings of fact on this critical question was in error, and this affected and infected the ultimate conclusion. It was an error and may have affected the Authority Decision, and was therefore material and jurisdictional.
Minister’s submissions
In relation to particular (b) of ground 2 the Minister submitted that:
(a)the Authority must make factual findings before applying the real chance test: Minister for Immigration & Ethnic Affairs v Guo and Another [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 74; (1997) 133 ALR 567; (1999) 48 ALD 481 (“Guo”), CLR at 574-575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ; and
(b)DYG17’s submission that the Authority’s factual finding must be “guided by” the real chance test is wrong and contrary to Guo.
Consideration – ground 2 – particular (b)
CB 227 at [25] of the Authority Decision, the paragraph complained of in particular (b) of ground 2, is set out in full at [27] above.
In Wu Shan Liang the High Court observed with respect to:
(a)the “real chance” test, that the correct test was whether there was a real chance that an applicant would be persecuted for a Convention reason were the applicant to return to the receiving country at the time of the administrative decision or within the reasonably foreseeable future: CLR at 279 per Brennan CJ, Toohey, McHugh and Gummow JJ; and
(b)the assessment of the chance of the occurrence of a future event, at CLR at 281 per Brennan CJ, Toohey, McHugh and Gummow JJ, as follows:
As a matter of ordinary experience, it is fallacious to assume that the weight accorded to information about past facts or the opinion formed about the probability of a fact having occurred is the sole determinant of the chance of something happening in the future: the possibility that a different weight should have been attributed to pieces of conflicting information or the possibility that the future will not conform to what has previously occurred affects the assessment of the chance of the occurrence of a future event.
In Guo, CLR at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ the High Court observed that:
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In any, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.
The Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220; (1999) 56 ALD 43 (“Rajalingham”) at [60] and [67] per Sackville, North and Kenny JJ, said as follows:
It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. This result, perhaps surprising at first glance, comes about because the ultimate question before the RRT is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a "real substantial basis" for the fear. The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring.
…Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred…
In assessing whether an applicant has a well-founded fear of persecution for one of the Convention reasons the Authority is entitled to weigh the material before it and make findings prior to considering if an applicant’s fear of persecution is well-founded: Guo at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. In circumstances where the Authority’s findings are not made with sufficient confidence then the Authority may need to consider whether their findings are incorrect in determining the applicant’s well-founded fear: Wu Shan Liang; Guo; Rajalingham.
In the context of a requirement to be satisfied with respect to the real chance that something may or may not occur, questions of weight and the assessment of the material before the Authority, and whether, for example, material is contradictory, are matters for the Authority: Wu Shan Liang, CLR at 281–282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Given the finding of jurisdictional error in relation to particular (a) of ground 2 it is perhaps somewhat artificial to have to consider particular (b) of ground 2 on the basis of the information that was before the Authority, but nevertheless the task must be undertaken lest the Court’s conclusion on particular (a) of ground 2 is wrong (and likewise with respect to grounds 3 and 1 considered below).
The paragraph at CB 227 at [25] of the Authority Decision, and the words “more plausible” in particular, ought not be read in isolation or taken out of context. Rather they need to be read in the context of the preceding paragraph: CB 226 at [25] in which a finding was made that there was no evidence that DYG17 was of any adverse interest to the TVMP, and to some extent the paragraphs that follow, and in particular CB 227-228 at [26]-[29], in which findings are made the TVMP had no ongoing interest in TVMP and that DYG17 did not face a real chance of serious harm from the sexual assault. In those paragraphs the Authority (based on the information before it, but not the new information discussed above in relation to particular (a) of ground 2) made findings which suggest that the use of the words “more plausible” indicates a positive finding free of any real doubt as to the “opportunistic and individual basis”: CB 227 at [25], for the sexual assault on DYG17. The Court is therefore not satisfied that particular (b) of ground 2 has been made out, and it therefore does not establish jurisdictional error in the Authority Decision.
Ground 3 – alleged failure to consider relevant considerations

Ground 3 as amended (with underlining omitted) is as follows:
3.The Authority fell into jurisdictional error in not considering relevant considerations.
Particulars
(a)The Authority did not consider whether new information in the Applicant’s statutory declaration dated 5 January 2017 met the requirements of section 473DD(b)(i) or section 473DD(b)(ii) of the Act. The Applicant refers to and repeats particular (a) to Ground 2 of this application.
(b)The Authority did not consider the information and arguments in the submissions on behalf of the Applicant and dated 6 January 2017, particularly in relation to the TMVP, how they behaved, and whether there may have been a real chance that they had or would target the Applicant specifically.
(c)Further or in the alternative to particular (b) to this Ground, the Authority did not consider information in a decision by the Refugee Review Tribunal in another matter, relating to the conduct of the TMVP, cited in the submissions on behalf of the Applicant and dated 6 January 2017. (Court Book 204; page 4 footnote 4 of the submission.)
(d)The Authority did not consider information before it relating to the risk of torture or other serious or significant harm to persons, in detention or otherwise under the control of the Sri Lankan authorities, as a risk quite apart from whether they were suspected of support or involvement in the LTTE, including information in the 2017 report on Sri Lanka by the Australian Department of Foreign Affairs and Trade.
(e)Further or in the alternative to particular (d), to this Ground, the Authority did not consider the question whether the Applicant may be at risk of torture or other serious or significant harm as a person in detention or otherwise under the control of the Sri Lankan authorities, quite apart from whether he may be suspected of support or involvement in the LTTE.
DYG17’s Submissions
Generally
DYG17 submitted generally that in relation to ground 3, the cases relating to relevant considerations on review by the Administrative Appeals Tribunal, under Pt 7 of the Migration Act, are largely applicable to review by the Authority, under Pt 7AA. The Authority must consider:
(a)each necessary and relevant consideration: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; and
(b)an integer of the claim: SZSZW v Minister for Immigration and Border Protection [2015] FCA 562 at [13]-[18] per Perry J.
The Authority must consider a material question of fact squarely raised by the material before the Authority: Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 (“Dranichnikov”) at [24] per Gummow and Callinan JJ; SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80; (2003) 76 ALD 625 at [29] per Madgwick and Conti JJ; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [58] per Black CJ, French and Selway JJ. Failure to do so is a jurisdictional error. An error about important information before the Authority, and a failure to have regard to it, can be an error of law and is a sign of jurisdictional error: Applicant M190 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1362. An active intellectual engagement is required in considering a relevant consideration: Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589; (2019) 373 ALR 569 at [37]-[38] per Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ.
The Authority’s reasons are given pursuant to s 473EA of the Migration Act. The omission of a question or finding from that statement may show that the Authority did not consider it material, and may show jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 180 ALR 1; (2001) 75 ALJR 1105 at [5] per Gleeson CJ and [69], [75], and [82]-[84] per McHugh, Gummow and Hayne JJ.
Ground 3 – particulars (a) and (b)
DYG17’s submissions
In relation to particular (a) of ground 3 DYG17 submitted that, as with particular (a) to ground 2, the Authority did not consider whether new information in DYG17’s January 2017 Statutory Declaration met the requirements of s 473DD(b)(i) or (b)(ii) of the Migration Act.
In relation to particular (b) of ground 3 DYG17 submitted that the Authority did not consider the information and arguments in DYG17’s January 2017 Authority Submissions, particularly in relation to the TMVP, how they behaved, and whether there may have been a real chance that they had or would target DYG17 specifically. The submission made important points, which on a fair reading of the Authority’s reasons, it did not consider. These were:
(a)that the Delegate did not place enough weight on the accepted sexual assault of DYG17 by members of the TMVP: CB 202;
(b)furthermore, the new evidence presented by DYG17 clearly demonstrates that the TMVP systematically targeted him over a period of time, not just on one particular occasion. In light of this new information, it is quite plausible that members of the TMVP would have a strong interest in DYG17 following his return to Sri Lanka: CB 202;
(c)this new information is directly relevant to DYG17’s claims for protection. Not only does it illustrate that the TMVP systematically targeted DYG17 over a period of time in Sri Lanka, thus creating him an adverse profile with the TMVP, but it also establishes a credible reason why DYG17 would be of interest to the TMVP on return to Sri Lanka today. This is supported by the 2017 DFAT Country Report: CB 203;
(d)that as referred to in DYG17’s January 2017 Statutory Declaration, he again details various reasons as to why the TMVP members were previously interested in him and why he believes they will continue to target him upon return to Sri Lanka today: CB 204
(e)there only need be a “real chance” that the TMVP systematically targeted him over a number of years, a low-threshold test and it is quite plausible that the TMVP were interested in him given his involvement with the TNA, computer skills and the new information provided by DYG17 about the personal fixation members of the TMVP had with him. There is no information to contradict DYG17’s claims for protection. On this basis the adverse credibility finding should be erased and his claim to have been targeted by the TMVP in the past accepted: CB 204; and
(f)the perpetrators were significantly motivated to rape and harm DYG17 because of his Tamil race and his actual or implied political opinion resulting from his involvement with the TNA and refusal to join the TMVP. Independent country information covering 2008 to 2012 demonstrates that forcible recruitment by pro-government paramilitaries including the TMVP occurred. It also shows that the TMVP abducted and assaulted civilians, specifically targeting members of the TNA and those who refused to support the TMVP: RRT Decision at [84]-[109]; CB 204.
Minister’s submissions – particulars (a) and (b)
In relation to particulars (a) and (b) of ground 3, the Minister submitted that:
(a)to the extent that the ground concerns the Authority’s treatment of DYG17’s January 2017 Statutory Declaration and DYG17’s January 2017 Authority Submissions, this has already been addressed in relation to ground 2;
(b)as previously stated, on a fair reading the Authority considered DYG17’s and rejected the speculations in them as to the reason for the TMVP’s or the assault perpetrators interest in him.
Consideration – ground 3 – particulars (a) and (b)
It suffices to observe that the Authority’s task, in this case subject to the new information provisions of s 473DD of the Migration Act, in relation to which jurisdictional error has already been established: see [30]-[31] above, is to consider all the claims made by an applicant and all of the integers of those claims as articulated by the applicant: Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop J; Dranichnikov at [24] per Gummow and Callinan JJ; Minister for Immigration & Border Protection v MZYTS & Anor [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 at [34] and [62] per Kenny, Griffiths and Mortimer JJ.
Particulars (a) and (b) of ground 3 succeed in establishing jurisdictional error in the Authority Decision for the same reasons as set out in relation to particular (a) of ground 2, and as a consequence of which the Authority failed to have regard to relevant considerations, namely the new information contained in DYG17’s January 2017 Statutory Declaration and the arguments which flowed therefrom in DYG17’s January 2017 Authority Submissions.
Ground 3 – particular (c)
DYG17’s submissions
In relation to particular (c) of ground 3 DYG17 submitted that:
(a)further or in the alternative to particular (b) to ground 3, the Authority did not consider information in the RRT Decision relating to the conduct of the TMVP, cited in DYG17’s January 2017 Authority Submissions: CB 204. The RRT Decision considered in some detail the TMVP and its method of operating: RRT Decision at [91]-[93]. While the Authority was not bound to follow findings of the Refugee Review Tribunal, it was obliged to engage with the material referred to, at least in so far as it addressed a critical question;
(b)as stated in the Authority Decision at CB 227 at [25];
there is no information or evidence before me that indicates that the TMVP or other parties used sexual violence against persons who they were trying to recruit; rather, the information in the referred material indicates that sexual violence was used against opponents or persons who had come to adverse attention for other reasons
nevertheless, DYG17’s January 2017 Authority Submissions said that “Independent country information covering 2008 to 2012 demonstrates that forcible recruitment by pro-government paramilitaries including the TMVP occurred”: CB 204, and the RRT Decision referred not only to past forcible recruitment, but also to treatment of opponents including members or supporters of the TNA: RRT Decision at [94]; and
(c)there was sufficient material in the RRT Decision, clearly relied on in DYG17’s January 2017 Authority Submissions and with an easily accessible link to it, that the Authority was obliged to engage with it.
Minister’s submissions
In relation to particular (c) of ground 3, the Minister submitted that:
(a)DYG17 complains that the Authority did not consider the RRT Decision referred to DYG17’s January 2017 Authority Submissions, however, there is no inference that it did not do so; and
(b)the Authority’s reasoning relied on an absence of information or evidence that the TMVP uses sexual violence against people they are trying to recruit: CB 227 at [25], and it is not suggested that the RRT Decision contains such information.
Consideration – ground 3 – particular (c)
As submitted by the Minister there is no inference available that the Authority did not consider the RRT Decision. If it did so it may well have concluded that the information in the RRT Decision at [93]-[94] was irrelevant to DYG17’s sexual assault in May 2010. That is because those paragraphs appear under a heading immediately before [92] of the RRT Decision which reads “TVMP relationship with TNA members and supporters [in] 2012 and onwards” (bolding in the original). Further at [94] of the RRT Decision the country information cited indicates that, in any event, “abductions are designed to silence or intimidate active members of the political opposition, rather than people unwilling to join them [the TVMP]”. In the circumstances, not only does the information in that part of the RRT Decision relied upon by DYG17 post-date, by approximately two years and more the May 2010 sexual assault, but it also supports, albeit at a general level, the Authority’s findings that any sexual assault may have been opportunistic, given the basis on which abductions were said to occur. It follows that particular (c) of ground 3 does not establish jurisdictional error in the Authority Decision.
Ground 3 – particulars (d) and (e)
It is convenient to consider particulars (d) and (e) of ground 3, which are cast in the alternative, together.
DYG17’s submissions
In relation to particular (d) to ground 3, DYG17 asserts that the Authority did not consider information before it relating to the risk of torture or other serious or significant harm to persons, in detention or otherwise under the control of the Sri Lankan authorities, as a risk quite apart from whether they were suspected of support or involvement in the LTTE, including information in the 2017 DFAT Report.
DYG17’s submissions in relation to particular (d) to ground 3 are as follows:
(a)the Authority said it considered the 2017 DFAT Report: CB 222 at [9] and cited it in connection with the return of illegal emigrants and failed asylum seekers: CB 231-232 at [44]-[49];
(b)DYG17 referred to other segments in the 2017 DFAT Report which stated (emphasis added):
4.15 DFAT is also aware of reported instances of torture carried out by the police. The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment visited Sri Lanka during April and May 2016 and reported that torture might be carried out by police in relation to regular criminal investigations, a risk which can increase when there is a perceived threat to national security.
4.16 In October 2016, the Human Rights Commission of Sri Lanka (HRCSL) submitted a report to the UN Committee Against Torture that claimed ‘torture to be of routine nature… practiced all over the country, mainly in relation to police detentions’ and that torture is used during interrogation and arrest and is used regardless of the nature of the suspected offence. A total of 208 torture complaints were received by the HRCSL as at 31 August 2016, compared to 600 in 2013. The geographic locations of torture reports are spread across Sri Lanka, with the most being reported in Colombo.
…
4.18 DFAT assesses that torture in Sri Lanka, perpetrated by either military, intelligence or police forces, is not presently systemic or state-sponsored. DFAT further assess that the risk of torture from military and intelligence forces has decreased since the end of the civil conflict.
4.19 DFAT assesses that in cases where police are alleged to have mistreated or tortured an individual, such practices generally reflect low capacity, lack of training and due process in arrest and detention procedures, and poor policing methods that focus on extracting confessions rather than undertaking thorough investigations.
…
4.21 DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka but cannot verify these reports given that many allegations are made anonymously, often to third parties and sometimes long after the torture is alleged to have occurred.
4.22 Thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture or mistreatment. Although it does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low and continues to reduce, including for those suspected of offences under the Immigrants and Emigrants Act.
(c)the Authority did not, on a fair reading of its reasons, consider the complex and important information before it, especially the 2017 DFAT Report, and did not grapple with the important divisions in assessments between DFAT and the UNHCR.
In relation to particular (e) to ground 3, DYG17 submitted that, further or in the alternative to particular (d) to ground 3, the Authority did not consider the question whether DYG17 may be at risk of torture or other serious or significant harm as a person in detention or otherwise under the control of the Sri Lankan authorities. This was a question squarely raised by the material before the Authority, as set out in relation to particular (d) to ground 3. The general findings of the Authority about the risk of harm on return is limited to “the airport screening process”, and the deprivation of liberty for a few days on remand and questioning and detention: CB 231 at [46] and 232 at [49].
Minister’s submissions
In relation to particulars (d) and (e) to ground 3 the Minister submitted that:
(a)DYG17 also complains that the Authority did not consider the country information about torture in the 2017 DFAT Report, but this is not a fair reading of the Authority Decision;
(b)the Authority states that it considered 2017 DFAT Report: CB 222 at [9], and expressly refers to it at CB 231 at [44] when finding the risk or torture or mistreatment for the majority of returning Tamils is low; and
(c)the Authority makes clear that DYG17 had no adverse profile with the Sri Lankan authorities, and this was the reason it did not consider that there was a real chance of him suffering serious harm, including while in detention: CB 231 at [45] and 233 at [51].
Consideration – ground 3 – particulars (d) and (e)
In relation to the 2017 DFAT Report it is evident that the Authority was aware of and considered it: CB 222 at [9], 231 at [44] and fn 6, 231-232 at [46] and fn 10, 232 at [47] and fn 11, and 234 at [56] and fn 14. In so doing the Authority observed that:
(a)“DFAT has assessed the risk of torture or mistreatment for the majority of returning Tamils is low, including for those suspected of offences under the Immigrants and Emigrants Act (the I&E Act)”: CB 231 at [44];
(b)the country information (which fn 10 at CB 231 referenced as being the 2017 DFAT Report) indicated that returned asylum seekers and those with no or an otherwise low profile were not generally at risk of harm on return to Sri Lanka, and that the Authority was therefore satisfied that DYG17 would not be at risk on return “on the basis of any adverse security or criminal profile and I find that there is not a real chance he would be subjected to harm because he is a returning asylum seeker”: CB 231-232 at [46];
(c)at CB 232 at [47] (with fn 11 at CB 232 referencing the 2017 DFAT Report) indicated that on return to Sri Lanka:
According to DFAT a Sri Lankan national who departs Sri Lanka other than via an official port will be in breach of the I&E Act and may be subject to penalties which can include imprisonment for up to five years and a fine of up to Rs.200000 (approximately AUD $2000). In terms of the likelihood of a custodial sentence, DFAT advises that those who are not actively involved in a people smuggling venture are not given custodial sentences for departing Sri Lanka illegally. DFAT also assesses that ordinary passengers are generally viewed as victims on return. Persons who departed in breach of the I&E Act may be arrested and charged. A person who departed illegally may, on return, be remanded in custody for a short period (24 hours) while waiting to be brought before a magistrate, but this period may be longer if a person is returned just before a weekend. Where a person pleads guilty, they will be fined and discharged. In most cases, when a returnee pleads not guilty, they are immediately granted bail on personal surety, though they may be required to have a family member act as guarantor, in which case they may also need to wait until a family member comes to court to collect them. DFAT reports that bail conditions are rarely imposed on illegal departees and there is no general requirement on such persons to report to police or police stations between hearings.
(d)“DFAT advises that the risk of harm for the majority of returnees, including those suspected of offences under the I&E Act is low and there is no indication before me that the applicant faces a real risk of significant harm during the investigation, questioning or while held in airport detention”: CB 234 at [56].

The Authority’s referrals to or reliance upon the 2017 DFAT Report must be read together with its assessment that DYG17 did not face a real chance of serious harm “for any reason” based upon his lack of an adverse profile with the Sri Lankan authorities and that he was not being targeted by the TMVP: CB 232 at [51]. It is thus evident that the Authority gave proper consideration to the risks to DYG17 of his being detained, and his being tortured or of suffering serious harm otherwise, upon his return to Sri Lanka. In the circumstances particulars (d) and (e) to ground 3 are not made out and do not establish jurisdictional error in the Authority Decision.
Ground 1 – unreasonableness
Ground 1 as amended (with strikethroughs and underlining omitted) is as follows:
1.The Second Respondent (“The Authority”) fell into jurisdictional error in that it was unreasonable, illogical, irrational or made findings with no probative evidence.
Particulars
(a) The Authority was unreasonable in not being satisfied that there were exceptional circumstances to justify considering new information in the Applicant’s Agent’s submission dated 6 January 2017, concerning the details of the Applicant’s sexual assault,.
(b) The Authority was unreasonable in not being satisfied that there were exceptional circumstances to justify considering new information in the Applicant’s Agent’s submission dated 6 January 2017, which provided additional information on assaults or sexual harassment suffered by the applicant, supporting the Applicant’s fear of being targeted, rather than as characterised by the Member at paragraph 25 of the decision, having suffered an opportunistic sexual assault.
(c) The Authority was unreasonable in not being satisfied that there were exceptional circumstances to justify considering new information in the Applicant’s statutory declaration dated 5 January 2017.
(d) [Particular (d) was abandoned]
(e) The Authority was further unreasonable in not admitting the applicant to an interview, given the claim that he had been unable to speak earlier about the sexual violence he had encountered.
(f) The Authority was not reasonable in determining not to give significant weight to corroborative letters by a Member of Parliament, a Justice of the Peace, a Pastor, a Parish Priest and a Bishop, without first making inquiries or seeking new information pursuant to section 473DC of the Migration Act 1958 (“the Act”) about them and about the knowledge of the letters’ authors about the situation of the Applicant and his family. (Decision and Reasons, [31])
DYG17’s Submissions
Generally
In general, as to unreasonableness in relation to ground 1, DYG17 submitted that:
(a)the Authority is obliged to act within the bounds of legal reasonableness, referring to Plaintiff M174/2016 at [21] per Gageler, Keane and Nettle JJ (footnote omitted):
There is no dispute between the parties that the various powers conferred on the Authority by Div 3 of Pt 7AA are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, in the sense explained in Minister for Immigration and Citizenship v Li (2013), with the consequence that an unreasonable failure to exercise such a power can render invalid a purported performance by the Authority of the duty imposed on it by s 473CC to conduct a review and either to affirm or to remit the decision under review.
(b)the Authority falls into jurisdictional error if it makes findings which are illogical in the sense that they are so unreasonable that no reasonable decision maker could so have acted: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. This principle is reinforced, given the Authority’s obligation under s 473EA of the Migration Act to give a written statement which sets out its reasons;
(c)the obligation of the Authority to act reasonably extends not only to its final decision, but to how it conducts the review, for example to its exercise of discretions it has under the law: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225 (“Li”), including its determination whether to exercise its powers under s 473DC of the Migration Act to get new information, including by interview. This will depend on the particular facts of each individual case: GZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 at [70] per Reeves, Robertson and Rangiah JJ; DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134; (2019) 366 ALR 665 at [35]-[54] per Griffiths and Steward JJ;
(d)unreasonableness indicates a failure by the Authority to discharge its statutory task, and therefore jurisdictional error. In determining whether the Authority was unreasonable, the statutory context is important: Li at [67]-[72] per Hayne, Kiefel and Bell JJ. The statutory context of review by the Authority is not only the procedural prescriptions of Pt 7AA of the Migration Act, but the substantive provisions under which DYG17 met the requirements for protection under s 36(2)(a) of the Migration Act (as interpreted by ss 5H and 5J of the Migration Act) if he had “a real chance” of suffering persecution, or under s 36(2)(aa) of the Migration Act if he had a real risk (being the same as a “real chance”) of suffering significant harm; and
(e)as submitted above in relation to particular (b) to ground 2, following Chan a real chance of persecution, pursuant to ss 5H and 5J of the Migration Act, or a real risk of significant harm, pursuant to s 36(2)(aa) of the Migration Act, is sufficient to establish a claim for protection, and a real chance may be small. This is the statutory context for assessing unreasonableness.
Ground 1 – particulars (a), (b) and (c)
DYG17’s submissions
In relation to particulars (a) and (b) to ground 1, DYG17 submitted that:
(a)the Authority was unreasonable in not being satisfied that there were exceptional circumstances to justify considering new information in DYG17’s January 2017 Authority Submissions, concerning the details of DYG17’s sexual assault which provided additional information on assaults suffered by DYG17, supporting DYG17’s fear of being targeted, rather than as characterised by the Authority, as having suffered an opportunistic sexual assault: CB 227 at [25]; and
(b)on a fair reading of the Authority Decision it did not consider DYG17’s January 2017 Authority Submissions.
In relation to particular (c) to ground 1, DYG17 submitted that:
(a)the Authority was unreasonable in not being satisfied that there were exceptional circumstances to justify considering new information in DYG17’s January 2017 Authority Submissions, concerning the details of the Authority’s error in not applying s 473DD of the Migration Act to the new information in DYG17’s January 2017 Statutory Declaration;
(b)both because of that error (not first considering section 473DD(b) of the Migration Act), and also on any view of what was required of the Authority to review the Delegate’s Decision (in the light of s 36(2)(a) and (aa) of the Migration Act), the Authority was unreasonable in not being satisfied that there were exceptional circumstances to justify considering the new information in DYG17’s January 2017 Statutory Declaration;
(c)the new information gave details which explained why DYG17 believed he had been personally targeted for assault by the TMVP and was not the subject of an opportunistic attack with no implications for the future. The interlocking factors of membership and work for the TNA (and therefore opposition to the TMVP), his computer and technical expertise, his apparent personal desirability as a sexual target, and his fear of suffering assault on return to Sri Lanka were all laid out in DYG17’s January 2017 Statutory Declaration in a way that answered and challenged the reasons in the Delegate’s Decision, and which more fundamentally made his claim to have been targeted a credible claim – at least in the sense of s 473DD(b)(ii) of the Migration Act – and therefore a claim which might be accepted, and which might affect the Authority Decision; and
(d)for these reasons, it was legally unreasonable for the Authority to determine to exclude DYG17’s January 2017 Statutory Declaration from its consideration.
Minister’s submissions
In relation to particulars (a), (b) and (c) of ground 1, the Minister submitted that:
(a)DYG’s submissions do not explain why the Authority was bound to find that the circumstances were “exceptional” which, as explained in Plaintiff M174/2016 at [30] per Gageler, Keane and Nettle JJ, bears its ordinary meaning; and
(b)the fact that DYG17 claimed to have been sexually assaulted cannot mean that the circumstances were necessarily exceptional, in that many refugee claims allege such assaults.
Consideration – ground 1 – generally and particulars (a), (b) and (c)
Generally
In certain circumstances unreasonableness, and more correctly, legal unreasonableness, may constitute jurisdictional error: Li at [63]-[76] per Hayne, Kiefel and Bell JJ.
Reasonableness is an implied condition on the valid exercise of the Tribunal’s statutory duty: Li at [92] per Gageler J. What is considered the legal standard of reasonableness is predicated on the scope and purpose of the statutory functions conferred upon the Tribunal under the Migration Act: Li at [67] and [74] per Hayne, Kiefel and Bell JJ. In Ministerfor Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491 (“Stretton”) at [9] per Allsop CJ.
Legal unreasonableness is fact dependent and each case must be examined and determined in light of the individual circumstances and evidence in a proceeding: Stretton at [10] per Allsop CJ; Djokovic vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [30]-[33] per Allsop CJ, Besanko and O’Callaghan JJ (and cases there cited).
Fact-finding can only be impugned where the factual determination is illogical, irrational or lacking a basis in a finding or inferences supported on logical grounds: SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1 at [52] per McKerracher J.
SZMDS sets a very high threshold for findings of irrationality or illogicality, and that reasonable minds might differ as to the decision or finding to be made on the basis of the evidence is insufficient to establish irrationality or illogicality: SZMDS at [131] per Crennan and Bell JJ.
Particulars (a), (b) and (c) to ground 1
In essence, particulars (a), (b) and (c) to ground 1 complain that it was unreasonable for the Authority not to determine that “exceptional circumstances” existed to warrant the Authority considering the new information in DYG17’s January 2017 Statutory Declaration and DYG17’s January 2017 Authority Submissions. For these purposes what constitutes “exceptional circumstances” was essayed by the plurality in the High Court in Plaintiff M174/2016 at [30] per Gageler, Keane and Nettle JJ as follows (footnote omitted):
Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.
In the Court’s view what is being sought by particulars (a), (b) and (c) is a view from the Court as to whether, on the facts set out in, at least, DYG17’s January 2017 Statutory Declaration, particularly at [11]-[12], exceptional circumstances exist such as to warrant consideration of the new information by the Authority. What is sought is, in effect, an impermissible advisory opinion on the facts, and, acutely mindful of the dichotomy between merits review and judicial review which lies at the heart of Australian administrative law and that the boundary between the two is vigorously policed: Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) LGERA 11 at [127] per Spigelman CJ; Zentai v O’Connor (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476 at [367] per McKerracher J: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ, the Court cannot undertake the task seemingly set by particulars (a), (b) and (c) of ground 1. Particulars (a), (b) and (c) of ground 1 do not therefore establish jurisdictional error in the Authority Decision.
Ground 1 – particular (e)
DYG17’s submissions
In relation to particular (e) of ground 1 DYG17 submitted that:
(a)the Authority was unreasonable in not admitting DYG17 to an interview pursuant to s 473DC of the Migration Act, as requested, given the claim that he had been unable to speak earlier at the Delegate’s Interview about the sexual violence he had encountered, and given the link which DYG17 stated between personal interest in him by the TMVP and the extreme sexual violence he had suffered;
(b)in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2010) 253 FCR 475 the Full Court of the Federal Court clarified that the power of the Authority to seek new information under s 473DC of the Migration Act is to be exercised reasonably, and that the assessment of the actions of the Authority is better considered through the lens of reasonableness rather than of procedural fairness; and
(c)the question of whether the violence was targeted or opportunistic was critical. Just as it was unreasonable for the Authority to exclude DYG17’s January 2017 Statutory Declaration, it was unreasonable for the Authority not to seek new information about it at interview.
Minister’s Submissions
In relation to particular (e) of ground 1 the Minister submitted that:
(a)the Authority explained why it did not consider it appropriate to invite DYG17 to an interview: CB 222 at [8], having regard to the statutory scheme and the ability of DYG17 to present his claims at an interview;
(b)DYG17’s submissions do not explain why this reasoning is legally unreasonable;
(c)the High Court has held that, having regard to the statutory scheme, the Authority makes its decisions “on the papers” and without any duty to get new information. The circumstances in which the Authority will be held to have unreasonably failed to exercise its power under s 473DC(1) of the Migration Act to get new information requires a high threshold: Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550; (2020) 95 ALJR 54; (2020) 385 ALR 212 (“DUA16”) at [26]-[27] and [34] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ; and
(d)legal unreasonableness has not been demonstrated in these circumstances. The current circumstances are dissimilar to that in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439; (2020) 94 ALJR 928; (2020) 383 ALR 407, where the Authority rejected a claim that had been accepted by the Delegate on credibility grounds. In the current circumstances, the Authority accepted DYG17’s claim that he had been sexually assaulted.
Consideration – ground 1 – particular (e)
The primary position with respect to reviews under Pt 7AA of the Migration Act is that they are conducted on the papers, and that no further (or new) information need be obtained, whether by way of written or oral evidence (including interviews) or written or oral submissions, unless exceptional circumstances exist: DUA16 at [27] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ.
In DYG17’s case it is apparent that he provided an account of the sexual assault to the Delegate at the Delegate’s Interview, and that that account was sufficient for the Authority on review to characterise the sexual assault as a “serious sexual assault”. Merely because DYG17 now says that that account was inadequate and that he was not able to fully explain himself does not render the Authority’s not interviewing him legally unreasonable. The Authority had sufficient information to characterise the sexual assault as a “serious sexual assault”, and in those circumstances it was open to the Authority not to interview DYG17.
In the circumstances, particular (e) of ground 1 has not been made out and does not establish jurisdictional error in the Authority Decision.
Ground 1 – particular (f)
DYG17’s submissions
In relation to particular (f) to ground 1 DYG17 submitted that:
(a)the Authority was unreasonable in determining not to give significant weight to corroborative letters by a Member of Parliament (“MP”): CB 153-154, a parish priest: CB 155, a bishop: CB 156, a Justice of the Peace (“JP”): CB 157, and a pastor: CB 158, at least without first making inquiries or seeking new information, pursuant to s 473DC of the Migration Act, about them and about the knowledge of the letters’ authors about the situation of DYG17 and his family: CB 228 at [31];
(b)on their face, the letters stated knowledge by the authors which, apart from a reference by the MP to DYG17’s mother telling him that members of the TMVP had come looking for DYG17 in September 2012: CB 153, and by the pastor that he was told DYG17 had sought asylum abroad: CB 158, was not said to be on the basis of information by other persons. There was therefore no basis for the Authority to assume without asking that the statements were made on the basis of what other people had told the authors;
(c)the Delegate found that the claims were fabricated, and had dismissed these letters, with no specific examination of them: CB 168, on the basis that:
given the manifestly incredible account the applicant has presented and the prevalence of document fraud in Sri Lanka, I give these documents no weight.
(d)the Authority, by contrast, did not find that DYG17’s claims were fabricated, but rather that he had a genuine subjective fear: CB 227 at [27]. It further found at CB 225 at [18] that:
It is plausible, and I am prepared to accept that, the TMVP was seeking recruits and may have been interested in co-opting people from the TNA. I accept that the applicant had skills in computing and English language that would have made him attractive as a potential recruit.
(e)while the Tribunal under Part 7 of the Migration Act is conducting a different procedure of review from the Authority, nevertheless it is assessing the same core question, whether an applicant is owed protection and meets criteria under s 36(2)(a) or (aa) of the Migration Act. While allowing that the power under s 473DC of the Migration Act is framed specifically for the Authority, the basic proposition in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1183; (2009) 259 ALR 429; (2009) 111ALD 15 (“SZIAI”) at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, is nevertheless pertinent to the Authority:
It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
(f)of specific relevance to the present matter, in AMT15 v Minister for Immigration and Border Protection [2018] FCA 366; (2018) 74 AAR 366 (“AMT15”) at [45]-[46] per Tracey J, it was found that the failure by the Tribunal to contact a Sri Lankan Member of Parliament to verify or to ask about a letter on letterhead, with contact details, was a jurisdictional error. Similarly, in the present matter, if the Authority was doubtful about the genuineness, honesty or reliability of the corroborative letters, it should have sought information from the parish priest, the bishop, the pastor, the MP, and the JP about what they said in their letters, and their knowledge of DYG17’s situation. The letters were on official letterhead with their names and official status and addresses, and in the case of the bishop, the MP and the JP with telephone numbers: CB 153-158. Failure to seek further information in these circumstances was an unreasonable failure to exercise power under section 473DC of the Migration Act, and a jurisdictional error.
Minister’s submissions

In relation to particular (f) to ground 1, the Minister submitted that:
(a)the Authority was not asked to seek new information about the letters from the MP, the JP, the pastor, the parish priest and the bishop referred to at CB 228 at [31];
(b)having regard again to the statutory scheme and the high threshold for legal unreasonableness in applying s 473DC(1) of the Migration Act: DUA16, this ground must fail as the Authority was not obliged to make inquiries of persons in Sri Lanka; and
(c)AMT15 relied upon by DYG17, concerns a different statutory scheme and for that reason, is of no assistance.
Consideration – ground 1 – particular (f)
In an appropriate case it might be that the Authority might seek to confirm that a letter from a third party is not bogus, or that the third party had indeed sent the letter: AMT15 at [38] and [47] per Tracey J. AMT15 goes no further than that: it does not suggest that enquiries can be made of third parties about the veracity of information contained in correspondence provided to an administrative decision-maker. And whether it be evidence, submissions or country information, the weight to be given to material before an administrative decision-maker in proceedings under the Migration Act is, generally speaking, a matter for that decision-maker, here the Authority: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11]-[13] per Gray, Tamberlin and Lander JJ. And in this case the Authority did not express doubt that the letters were written by their authors, but rather expressed doubts as to the content of the letters and the authors actual knowledge of the events described therein, such that it determined it would not give then “significant weight”: CB 228 at [31]. That was the Authority exercising a discretion which was properly its to exercise.
AMT15 does not assist DYG17 in these circumstances because, as expressed in the previous paragraph, it does not suggest that enquiries can be made of third parties about the veracity of information contained in correspondence provided to an administrative decision-maker. Nor does SZIAI assist DYG17: there is nothing in SZIAI which would indicate that the types of obvious inquiries into easily ascertainable facts that the High Court had in mind would include an examination by an administrative decision-maker of foreign officials and office-holders as to the actual veracity of the factual content of letters of support for an applicant. Examples of the limited scope of SZIAI sanctioned enquiries are afforded by AMT15 and by a case such as WZANF v Minister for Immigration [201] FMCA 110 at [107] per Lucev FM where the then Federal Magistrates Court held that it would have been open to the Tribunal to require the Secretary of the Department to make enquiries through a DFAT official in Turkey concerning the existence of a newspaper, the publication of a particular article in the newspaper (if it existed), and if the article had been published, obtaining a copy thereof, and that the Tribunal’s failure to make those enquiries constituted jurisdictional error.
In the above circumstances, and bearing in mind the stringency of the test for unreasonableness: Li at [113] per Gageler J; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 357 ALR 408; (2018) 163 ALD 1 at [11] per Kiefel CJ, the Court considers that the Authority had no obligation to make the enquiries suggested by DYG17, and it was proper for the Authority to attach such weight as it saw fir to the various letters. It follows that particular (f) to ground 1 establishes no jurisdictional error in the Authority Decision.
CONCLUSION AND ORDERS
The Court has concluded that the Authority decision is affected by jurisdictional error as alleged in particular (a) of ground 2 and particulars (a) and (b) of ground 3, but not otherwise. Therefore, writs of certiorari and mandamus ought to issue to quash the Authority Decision and remit the matter to the Authority for reconsideration according to law.
The Court will hear the parties as to costs.

I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.
Associate:
Dated: 19 December 2024

File number(s):	MLG 1918 of 2017
Judgment of:	JUDGE LUCEV
Date of judgment:	19 December 2024
Catchwords:	MIGRATION – Judicial review – decision of Immigration Assessment Authority – citizen of Sri Lanka – Tamil ethnicity – Christian religion – alleged fear of harm from Tamil political organisation – new information being allegation of abduction and sexual assault – whether failure to apply real chance test – whether failure to consider relevant considerations – whether failure to consider whether new information met statutory requirements – whether law misunderstood or misinterpreted in consideration of new information – whether failure to consider claim applicant specifically targeted – whether failure to consider concerning conduct of Tamil political organisation – whether failure to consider information relating to risk of torture or other serious or significant harm – whether findings unreasonable, illogical or irrational – whether findings made on basis of no probative evidence – whether exceptional circumstances to justify considering new information – whether unreasonable not to interview applicant – whether unreasonable not to give significant corroborative weight to letters from various civil and clerical officeholders – whether material jurisdictional error – writs issued
Legislation:	Migration Act 1958 (Cth) Pt 7, Pt 7AA, ss 5H, 5J, 36, 473DB, 473DC, 473DD, 473EA, 474, 476 Immigration & Emigration Act 1948 (Sri Lanka)
Cases cited:	ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439; (2020) 94 ALJR 928; (2020) 383 ALR 407 AMT15 v Minister for Immigration and Border Protection [2018] FCA 366; (2018) 74 AAR 366 APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 Applicant M190 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1362 Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32; (2020) 94 ALJR 897; (2020) 383 ALR 194 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; (2005) 80 ALJR 228; (2005) 222 ALR 411 ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196 BDF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 401 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; (1989) 63 LJR 561; (1989) 87 ALR 412 CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 Djokovic vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134; (2019) 366 ALR 665 Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 GZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 271 CLR 550; (2020) 95 ALJR 54; (2020) 385 ALR 212 Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589; (2019) 373 ALR 569 Minister for Immigration & Border Protection v MZYTS & Anor [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 Minister for Immigration & Ethnic Affairs v Guo and Another [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 74; (1997) 133 ALR 567; (1999) 48 ALD 481 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220; (1999) 56 ALD 43 Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2010) 253 FCR 475 Ministerfor Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (2019) 92 ALJR 780; (2018) 75 AAR 551 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 357 ALR 408; (2018) 163 ALD 1 Minister for Immigration and Border Protection v Tran [2015] FCA 546; (2015) 232 FCR 540; (2015) 150 ALD 446 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1183; (2009) 259 ALR 429; (2009) 111ALD 15 Minister for Immigration and Citizenship v SZMDS and Anor [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 180 ALR 1; (2001) 75 ALJR 1105 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 294 FLR 150; (2020) 171 ALD 477 Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) LGERA 11 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 (2018) 92 ALJR 48; (2018) 353 ALR 600 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80; (2003) 76 ALD 625 SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1 SZSZW v Minister for Immigration and Border Protection [2015] FCA 562 WZAVQ v Minister for Immigration and Border Protection [2016] FCA 188 Zentai v O’Connor (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476
Division:	Division 2 General Federal Law
Number of paragraphs:	84
Date of last submission/s:	6 February 2023
Date of hearing:	6 February 2023
Place:	Perth
Counsel for the Applicant:	Mr A Krohn
Solicitor for the Applicant:	Vrachnas Lawyers
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the Respondents:	Australian Government Solicitor
Second Respondent:	Submitting appearance, save as to costs

MLG 1918 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	DYG17 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

ORDER MADE BY:	JUDGE LUCEV
DATE OF ORDER:	19 DECEMBER 2024