ECL19 v Minister for Immigration, Citizenship and Multicultural Affairs - [2025] FedCFamC2G 764

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ECL19 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 764

File number(s): ADG 405 of 2019

Judgment of: JUDGE LUCEV

Date of judgment: 27 May 2025

Catchwords:
MIGRATION – Judicial review application – decision of Immigration Assessment Authority – citizen of Sri Lanka – whether proper consideration given to whether exceptional circumstances existed to justify considering new information – whether assessment of whether new information was credible personal information – whether legally unreasonable to fail to utilise powers to obtain information from the applicant or other sources – whether legally unreasonable determinations concerning the applicant’s credibility and alleged failure to raise issues – whether jurisdictional error – writs issued

WORDS AND PHRASES – “reliable”

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

Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Rules 2024 (Cth), rr 11, 12

Immigrants and Emigrants Act 1948 (Sri Lanka)

Prevention of Terrorism (Temporary Provisions) Act 1979 (Sri Lanka)

Cases cited:
The Shorter Oxford Dictionary on Historical Principles (Oxford: Clarendon Press, 1973)

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

ALJ18 v Minister for Home Affairs [2020] FCA 491

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

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; (2005) 87 ALD 512

ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630

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

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

BJB16 v Minister for Immigration and Border Protection [2018] FCAFC 49; (2018) 260 FCR 116

BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169; (2017) 253 FCR 448; (2017) 175 ALD 494

BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114; (2018) 261 FCR 35

BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196

BVZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1803

CPP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 199

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

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641

DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551

DUZ17 v Minister for Home Affairs [2019] FCA 1593

FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; (2020) 274 FCR 456

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

Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; (2018) 260 FCR 482

Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50

Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 75 AAR 434; (2018) 357 ALR 405; (2018) 163 ALD 1

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181

Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1

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

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41

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

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; (1999) 73 ALJR 746; (1999) 162 ALR 577; (1999) 54 ALD 289

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

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228; (2002) 123 FCR 298; (2002) 193 ALR 449; (2002) 69 ALD 1

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600

Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 90 ALJR 197; (2015) 327 ALR 8; (2015) 148 ALD 206

SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198

SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2010) 289 ALR 463; (2012) 127 ALD 1

WAGO v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437; (2002) 194 ALR 676

Division: Division 2 General Federal Law

Number of paragraphs: 55

Date of last submission/s: 3 July 2024

Date of hearing: 3 July 2024

Place: Perth

Counsel for the Applicant: Mr S Churches

Solicitor for the Applicant: LK Law

Counsel for the First Respondent: Mr A Chan

Solicitor for the Respondents: Sparke Helmore Lawyers

Second Respondent: Submitting appearance, save as to costs
ORDERS

ADG 405 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
ECL19

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE LUCEV

DATE OF ORDER:

27 MAY 2025

THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Second Respondent made on 18 October 2019.
2.A writ of mandamus issue requiring the matter to be remitted to the Administrative Review Tribunal in accordance with rr 11 and 12 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Rules 2024 (Cth) to re-determine the review of the decision of the Delegate of the First Respondent made on 4 September 2019, 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 judicial review application (“Amended Judicial Review Application”) filed by the applicant, ECL19, under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) on 30 August 2023 which seeks review of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) affirming a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Immigration and Citizenship (“Minister”) not to grant ECL19 a Safe Haven Enterprise visa (“SHE Visa”)
The Court Book (“CB”) filed by the Minister on 23 March 2020 was marked as Exhibit 1 at hearing. The Authority Decision appears at CB 134-154.
At hearing the affidavit of ECL19 affirmed 19 October 2023 (“ECL19’s Affidavit”) was marked for identification and the Court reserved judgment as to whether or not it would be read and go into evidence. The Court has determined that ECL19’s Affidavit ought not to be read as it deals solely with factual matters which predate, in many instances, the Delegate’s Decision, and in all instances, the Authority Decision. Those factual matters were relevant to merits review but are not appropriate for further consideration on judicial review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”).
All references to statutory provisions in these Reasons for Judgment are, unless otherwise indicated, references to the Migration Act and to the provisions therein as they were at the time of the Authority Decision.
BACKGROUND
ECL19’s claims
ECL19 made the following claims:
(a)ECL19 claimed to be a Sri Lankan citizen, and a Tamil from the Northern Province. His uncle (“Uncle S”) was a member of the Liberation Tigers of Tamil Eelam (“LTTE”);
(b)after the end of the civil war in May 2009, Uncle S was detained along with his immediate family by the Sri Lankan Government for approximately six months. Upon Uncle S’ release, he and his family resided in ECL19’s family home in the central north of Sri Lanka for around six months before they returned to their home in the north east of Sri Lanka;
(c)the Sri Lankan Army (“SLA”) visited ECL19’s family home regularly and asked questions of ECL19’s family about their association with the LTTE. His parents were taken to the SLA camp for questioning around three to four times during 2010-2011;
(d)ECL19 travelled to India using his genuine Sri Lankan passport to attend a wedding from around August to September 2011. This passport remains in Sri Lanka;
(e)when ECL19 was leaving Sri Lanka to go to the wedding in India, the Sri Lankan immigration authorities enquired about his travel and told him that he had to return;
(f)between 2010 and 2012 ECL19’s family received a number of anonymous phone calls from unknown persons speaking Singhalese. ECL19 recalls receiving one such phone call around ten days before he was attacked on 14 November 2012;
(g)ECL19’s mother’s brother-in-law (“Uncle P”), was also a member of the LTTE and was regularly taken for questioning and tortured by the authorities. ECL19 does not know where Uncle P is now;
(h)in June 2012 the Sri Lanka authorities visited ECL19’s family home and his mother went with them voluntarily in order to produce her National Identity Card. ECL19 stated that he and his father went with her voluntarily to support her, and were there for around four hours. While there the Sri Lanka authorities asked ECL19 questions about Uncles S and P, for approximately one hour;
(i)on one occasion in around August 2012 ECL19 was taken for questioning by the SLA with his parents, for around half a day and he was questioned on his own about Uncle S and his links to the LTTE. While he was not harmed during this time he felt threatened;
(j)in August 2012 the Sri Lankan authorities visited ECL19’s family home. At that time they came through the whole village doing a sweep for mines;
(k)on 14 November 2012 ECL19 was approached at night near his home by two unknown men on a motorbike. The man on the back got off the motorbike and spoke Singhalese. He attacked ECL19 with a rod and sword before leaving. ECL19 was assisted to get to a hospital where he received medical treatment including seven stitches to his knee;
(l)ECL19 asserted that the unidentified people that attacked him on 14 November 2012 were from the Sri Lankan Government and suggested that this was a common practice to intimidate and harass in a secretive way, and is likely to happen to him again if he returns to Sri Lanka;
(m)ECL19 then stayed with his mother’s sister (“Aunt”) in a nearby suburb;
(n)while ECL19 remained with the Aunt, the CID went to his parents’ house looking for him on two occasions. His mother also received threatening phone calls (in Tamil) asking where he was;
(o)the Aunt’s husband organised for him to leave Sri Lanka by boat to go to Australia and he departed on 10 May 2013;
(p)since ECL19 arrived in Australia the Sri Lankan authorities have visited his family home in Sri Lanka looking for him several times. In around June-July 2013, his father went missing. His mother reported his father as being missing to the police;
(q)ECL19 fears returning to Sri Lanka as he believes he will be attacked again due to familial links (through his Uncles S and P) and imputed links to the LTTE;
(r)Uncle S joined the LTTE when he was very young and lost his leg while fighting in the war. ECL19 asserted that Uncle S held a senior position but was unsure of the specifics of his position and rank in the LTTE as he was young at the time;
(s)Uncle S was released about a month earlier than Uncle P, and lived with ECL19’s family upon release;
(t)the Sri Lankan authorities visited ECL19’s home for the first time after Uncles S and P were released from detention;
(u)Uncle P fought with the LTTE and was a lieutenant, but ECL19 wasn't sure of any other details. Uncle P was also detained in 2009 at a farm. Uncle P went missing with ECL19’s father;
(v)in February 2013 the Sri Lanka authorities came to ECL19’s home but he was not there. ECL19 stated that he was living with his Aunt during this time and regularly visited his parents, and his mother also visited him there;
(w)ECL19 stated that his father and Uncle P went missing when trying to come to Australia, soon after ECL19 arrived in Australia in May 2013. His family made a missing person’s report with the police about one and half months after ECL19’s father went missing;
(x)ECL19 stated he did not tell anyone about his missing relatives while he was in immigration detention or in his written application, as he thought his father would eventually make contact;
(y)ECL19 fears returning to Sri Lanka as he believes he may have problems again. He said as it has happened before, it is likely to happen again and suggested that the country had not progressed. He stated that even though the government has changed, the SLA and police were still operating in the same area, and ECL19 saw on the news that incidents involving torture continued;
(z)ECL19’s mother and younger brother moved in with the Aunt after ECL19’s father went missing and eventually moved to another house in the same city in 2017, and are currently waiting for ECL19’s sister to sponsor them so that they can relocate to Canada; and
(aa)ECL19 fears harm on the basis of his ethnicity, past experiences with the Sri Lankan authorities and actual or imputed political opinion arising from his ethnicity, gender, residence in the north of Sri Lanka and familial relationships with former LTTE members.
Procedural background
The procedural background prior to the making of the Amended Judicial Review Application is as follows:
(a)ECL19 arrived in Australia on 26 May 2013: CB 78. He had an accelerated processing interview (“AP Interview”) on 15 June 2013 and an induction interview (“Induction Interview”) on 10 July 2013: CB 144;
(b)on 26 June 2017 ECL19 applied for the SHE Visa: CB 21-70;
(c)the Delegate interviewed ECL19 on 8 February 2019 (“SHE Visa Interview”): CB 73;
(d)on 4 September 2019 the Delegate refused to grant ECL19 the SHE Visa: CB 78-93;
(e)on 10 September 2019 the Delegate’s Decision was referred to the Authority: CB 98-100;
(f)on 27 September 2019 ECL19 provided submissions and new information to the Authority: CB 110-130; and
(g)on 18 October 2019 the Authority Decision was to affirm the Delegate’s Decision: CB 134-154.
AUTHORITY DECISION
In the Authority Decision the Authority:
(a)considered an email from ECL19’s representative which enclosed a submission which contained discussion on why ECL19 did not agree with the Delegate’s Decision and a number of other documents;
(b)found that to the extent that the discussion reiterated and addressed claims made to the Delegate that this was not new information and was already considered in the review;
(c)found that sources (a)-(g) were not before the Delegate and were new information. In relation to the sources (a) – (d) these were provided in support of the claim made in the submission that “if the applicant and the members of his family unit, who are Australian citizen, are compelled to return to Sri Lanka, this raises the applicant's profile”. This claim was not before the Delegate and was new information and there were no exceptional circumstances to justify the consideration of the new information;
(d)with respect to an item of new information which the Authority described as a letter from a Member of Parliament (“MP’s Letter”): CB 135 at [4(e)] found as follows: CB 136 at [7]:
Source (e) appears to have been provided in support of the identity and character of the applicant and “the reality in [the applicant’s] community, that should he return, along with his Australian family members, there are serious and imminent risks to their life (sic)”. It has been contended that source (e) “was not readily available during the applicant’s application and interview and was only obtained recently, after seeking [the community advocacy service’s] assistance”. Source (e) is undated. It states his mother’s address as the family home. He stated at the protection visa interview that she had moved from this address some time after his arrival in Australia in 2013. The applicant was clearly advised by the delegate at the commencement of the protection visa interview that it was extremely important to provide the Department with complete and accurate protection claims as early as possible, including during the interview, and that it was his responsibility to raise his claims for protection. The applicant was also cautioned that if his application was refused he may not have another chance to provide further information to support his claims. The determinative issues which the source details were raised in his protection visa statement which the same community advocacy service had assisted him to prepare, and I do not accept that he could not have sought out this or a similar type of document earlier. It is personal information however I have serious concerns about its reliability. In relation to the specific circumstances of the applicant, it does not specifically indicate that the signatory has actual knowledge of such events; rather it refers to the applicant’s mother being known to the signatory and appears to be a narration of statements provided by her to the signatory. This is particularly evident in the paragraph which details the visits after the applicant departed, and the statements “I was told” and “[the applicant’s mother] told me”. Furthermore, the details regarding the “frequent visits to the family home” have been expressed in general terms and makes no mention of how frequent these visits were or when they have occurred. In light of the foregoing, I am not convinced of its corroborative value. Having regard to all of the evidence, I am not satisfied that there are exceptional circumstances to justify the consideration of this new information.
(e)in relation to sources (f) – (g) these pre-date the Delegate’s Decision and were found to be general country information not personal information: CB 136 at [8]. Source (f) was a report on the treatment of Tamils of “exactly persons such as [the applicant]”, which the Authority was not satisfied was contemporary evidence of the prevalence of arbitrary detention and torture: CB 137 at [9]. Source (g) was an extract from a broader report which ECL19 contended refuted the Delegate’s findings in relation to the Prevention of Terrorism (Temporary Provisions) Act 1979 (Sri Lanka) (referred to in the Authority Decision as the “PTA”), systemic discrimination and human rights violations/incidents, but the Authority was not satisfied that it materially added to the existing information, and found that there were no exceptional circumstances to justify consideration of sources (f) or (g), and nor was s 473DD(b) met: CB 137 at [10];
(f)accepted the following:
(i)ECL19’s identity;
(ii)that ECL19’s mother’s brother Uncle S and mother’s brother-in-law Uncle P were members of the LTTE and Uncle S was injured and had his leg amputated;
(iii)that at the end of the civil war in May 2009, Uncles S and P were detained separately in different camps by the Sri Lankan authorities for approximately 6 months before being detained after which Uncle S lived with ECL19 and Uncle P lived close by;
(iv)that when Uncle S was living with ECL19’s family Uncle S and ECL19 were questioned by the Sri Lankan authorities on a number of occasions which led to tension and Uncle S leaving ECL19’s family home and the SLA subsequently questioning ECL19’s parents about Uncle S’s whereabouts;
(v)that ECL19 departed Sri Lanka in 2011 using his passport and went to India for a wedding and returned after one month;
(vi)that between 2010 and 2012 on a number of occasions ECL19’s parents were harassed, threatened and questioned about their knowledge and connections with the LTTE at the family home and on at least one occasion questioned at the SLA camp but were released without charge;
(vii)that on 14 November 2012 ECL19 was stopped and attacked by two unknown men on a motorbike and was treated for the injuries sustained in the attack;
(viii)that ECL19 left Sri Lanka illegally and has applied for asylum and would very likely return to Sri Lanka on temporary travel document and would be returning after a prolonged residence in a western country and that Sri Lankan authorities may know or infer that he has made claims for protection in Australia;
(ix)on return to Sri Lanka ECL19 may be charged under the Immigrants and Emigrants Act 1948 (Sri Lanka) for departing Sri Lanka other than via an approved port of departure; and
(x)that ECL19 would likely return to the North of Sri Lanka as failed asylum seeker and may be the subject of some monitoring by the Sri Lankan authorities for a period and may face some reintegration issues in finding employment and accommodation and social stigma;
(g)did not accept that:
(i)Uncles S and P held positions of seniority or a rank in the LTTE;
(ii)ECL19 was stopped by immigration when going to India and told he had to return nor that at the time of his departure and return in 2011 he was of interest to the Sri Lankan authorities;
(iii)beyond any initial suspicions for being Tamil, ECL19 and his parents were otherwise of interest to the Sri Lankan authorities;
(iv)ECL19 was a truthful witness about the claims regarding receiving threatening calls from unknown individuals, and found that there was no country information which supported the claim that the calls were made by the Sri Lankan government or people acting on their behalf;
(v)people went to ECL19’s family home and sought his whereabouts or that his family received threatening calls from unknown people, and found that these were contrived to enhance his protection claims;
(vi)the attack and physical assault on ECL19 was undertaken by the Sri Lankan government or people acting on their behalf, and rather found it was an opportunistic attack and the identities of the perpetrators were and remain unknown;
(vii)ECL19 was of interest to the Sri Lankan authorities or any groups or individuals at the time of his departure in 2013;
(viii)the claims ECL19 made about the disappearance of his father and uncle or that they are missing;
(ix)ECL19’s past or present circumstances would lead to a real chance of any adverse interest or consequence for him on return to Sri Lanka or that would he be perceived on return to have had any role in the LTTE or Tamil separatist activities;
(x)would face a real chance of harm as someone with familial links to former LTTE members or because of any actual or imputed pro-LTTE, pro-Tamil, pro-Tamil separatism or anti-Sri Lankan government political opinion, on his return to Sri Lanka now or in the reasonably foreseeable future;
(xi)ECL19 would receive a custodial sentence for departing Sri Lanka illegally or that the conditions of detention for a brief period at the airport, a fine and the costs associated with regular court appearances, if required amount to serious harm;
(xii)any investigation, prosecution and punishment would amount to persecution for the purpose of ss 5H(1) and 5J(1);
(xiii)returning to the North of Sri Lanka as a failed asylum seeker amounted to serious harm or that ECL19 would face a real chance of persecution now or in the reasonably foreseeable future; and
(xiv)ECL19 has a well-founded fear of persecution or met the requirements of the definition of refugee in s 5H(1) or s 36(2)(a); and
(h)found that ECL19’s father and Uncle P had disappeared after ECL19’s arrival in Australia (“Missing Relatives Claim”). Based on the lateness in raising the Missing Relatives Claim, inconsistencies in ECL19’s evidence and the lack of any corroborative evidence, the Authority found that he had not been a truthful witness regarding these claims, and was not satisfied that his father or Uncle P had gone missing: CB 144-145 at [43]-[48].
CONSIDERATION
Grounds of the Amended Judicial Review Application

The Amended Judicial Review Application contains four grounds of review which are set out at [13] (ground 1), [29] (grounds 2 and ground 3) and [44] (ground 4) below.
Jurisdictional error
For present purposes it suffices to observe that the Court may set aside a decision of the Authority upon judicial review if it is affected by jurisdictional error: ss 474 and 476; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464 (“MZAPC”)at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ. In relation to the materiality of error the plurality in the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 (“LPDT”) at [15]-[16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ said that:
15.What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.
16.In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
Not merits review
The Court’s role is not to review the merits of the Authority Decision: Wu Shan Liang. The “line between judicial review and merits review… must be maintained”: LPDT at [15] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, and, as such, the Court does not undertake a fresh merits review of an applicant’s case. Further, the reasons of the Authority are not to be over-zealously scrutinised in a search for error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ.
Onus of establishing jurisdictional error
It is well established that an applicant for judicial review under s 476 bears the onus of establishing jurisdictional error: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1 at [67] per Gummow J (Heydon J agreeing at [91] and Crennan J agreeing at [92]); Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 90 ALJR 197; (2015) 327 ALR 8; (2015) 148 ALD 206 at [24] per French CJ, Bell, Keane, and Gordon JJ.
Legislation
Relevant to this application ss 473DB, 473DC and 473DD are as follows:
Section 473DB
(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.
Section 473DC
(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.
Section 473DD
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.
Ground 1
Ground 1 is as follows:
1.The IAA did not properly reach a state of satisfaction when exercising its powers under s473DD(a) and (b)(ii) of the Migration Act 1958, in that it did not properly consider, or failed to give proper, genuine and realistic consideration, to whether there existed exceptional circumstances to justify considering new information provided by the Applicant’s representative, nor did it assess whether the new information was credible personal information not previously known to the Minister which, had it been known, may have affected the Applicant’s claim.
Particulars
At [4] of the IAA’s decision, it determined that seven matters, listed as (a) to (g), were “new information”, as not having been before the Delegate. All but (d) pre-date the hearing by the Delegate. The information in (e) has been rejected in defiance of the law on assessing “exceptional circumstances” in the context of s473DD.
ECL19’s submissions
ECL19’s submissions in relation to ground 1 were as follows:
(a)the Authority asserted a lack of satisfaction “that there are exceptional circumstances”: CB 136 at [7] with regard to the MP’s Letter (and described therein as “source (e)”) being “new information”;
(b)the MP’s Letter discussed ECL19 and his family, and ECL19’s prospects if he were to return to Sri Lanka;
(c)the lack of satisfaction asserted regarding “exceptional circumstances”, absent any reference to context in s 473DD(b)(ii) - credible personal information that may affect the claims - amounts to jurisdictional error: BVZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1803 (“BVZ16”) at [12]-[17], [14] and [52] per White J; AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196 (“AUS17”);
(a)further jurisdictional error was committed by the Authority’s attack on “reliability”. The reference by the Authority: CB 136 at [7], to concerns as to “reliability” (of the MP’s Letter, not ECL19 himself) compounds the jurisdictional error dealt with above;
(b)the attack on “reliability” of new information cannot be distinguished for interpretative purposes from an attack on “credibility”. At the minimum, the case law on “credibility” in the context of s 473DD(b)(ii) is referrable to the instant use of “reliability”;
(c)as to matters of “credit” at the preliminary stage of ascertaining whether “new information” will be accepted, see Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; (2018) 260 FCR 482 (“CLV16”) at [17] per Flick, Griffiths and Perry JJ, about s 473DD(b), in which the Full Court of the Federal Court referred with approval to observations made in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (“CSR16”) regarding credit at the preliminary stage of accepting or rejecting “new information”, as opposed to assessing credit once the “new information” is being evaluated as to the protection claim. The majority in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 294 FCR 150; (2020) 171 ALD 477 (“BTW17”) at [62] per Mortimer and Jackson JJ held that CSR16 was correctly decided. As ALJ18 v Minister for Home Affairs [2020] FCA 491 at [24]-[25] per Mortimer J indicates the Minister has in other appeals challenged the correctness of CSR16 without success;
(d)the Full Court of the Federal Court has made quite clear that at the initial stage of determining whether “new information” may be considered, assessing the credibility element (in the instant case the reliability) requires only that the information be capable of being accepted as truthful (or reliable), and that a full determination of truth (or reliability) is only to take place later at the deliberative stage of the Authority’s review of the “new information”. The Authority has not adopted this approach, resulting in the summary exclusion of the MP’s Letter from the Authority’s consideration, which is a jurisdictional error; and
(e)the MP’s Letter in contention bears materiality as it is not, as the Authority asserted, merely hearsay repetition of what ECL19’s mother told the Parliamentarian. Apart from anything else, it informs a reader of the views of persons other than ECL19 as to relevant events, and it sets out the writer’s views on the relative safety or lack thereof for ECL19 if he were to return to Sri Lanka.
Minister’s submissions
The Minister’s submissions in relation to ground 1 were as follows:
(a)this ground contains two limbs:
(i)the first limb is that the Authority failed to comply with the principles from AUS17 by not considering the criteria in s 473DD(b) when making its finding against exceptional circumstances; and
(ii)the second limb is that the Authority breached the principles from CSR16 by applying too high a threshold for credible personal information;
(b)turning first to the AUS17 argument, the Authority plainly considered the criteria in s 473DD(b) in reaching its conclusion on the lack of exceptional circumstances because it is apparent from CB 136 at [7] that:
(i)the Authority expressly observed that the MP’s Letter was undated and was not satisfied that ECL19 could not have sought out the MP’s Letter or a similar type of MP’s Letter earlier. This is a finding against s 473DD(b)(i);
(ii)it then expressly accepted that the information was, using the statutory language, personal information. The Authority then said that it had “serious concerns about its reliability”, that the information was expressed in “general terms” and the signatory appeared to be simply recording what they were told by ECL19’s mother. The Authority therefore said that it was “not convinced of its corroborative value”. This is a finding against s 473DD(b)(ii);
(iii)the structure of the Authority Decision, combined with its use of the statutory language, reveal that it was acutely aware of the requirements of s 473DD; and
(iv)as was said in APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 (“APH17”) at [79] per Markovic J, the Authority is not required to engage in any formulaic consideration of s 473DD(b);
(c)as for the CSR16 argument, nothing in the Authority Decision shows that it was trying to determine the ultimate truthfulness of what was stated in the MP’s Letter. Rather, it stated that it had “serious concerns about its reliability”, noted that information was “expressed in general terms” and found that it “was not convinced of its corroborative value”. These findings are tantamount to saying the information was not capable of being believed. Again, the Minister emphasises that the Authority is not required to engage in a formulaic consideration of s 473DD; and
(d)even if any error is demonstrated, which is neither apparent nor conceded, any breach of s 473DD was minute and immaterial. It would not have realistically resulted in a different decision: MZAPC at [2] and [60] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
Consideration – ground 1
Crucial to the disposition of ground 1 is what the Authority found at CB 136 at [7] which is set out in full at [7(d)] above.
The High Court considered the nature of the procedural duties under s 473DD in AUS17 and held that performance of the procedural duty in s 473DD requires:
(a)the Authority:
(i)first, to assess new information against the criteria specified in ss 473DD(b)(i) and (ii); 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): 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) 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): 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 by almost a year. 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 was required: APH17 at [79] per Markovic J; ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847 at [64] per Wigney J.
In CSR16 at [41]-[42] per Bromberg J the Federal Court observed as follows:
41.In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority's satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.
42.The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (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; (2005) 87 ALD 512 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 the plurality in the Full Court of the Federal Court said as follows at [72]-[77] per Mortimer and Jackson JJ (emphasis added):
72.Just 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 — both 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.
73.However, there comes a point at which such an assessment will go too far, and in reality will equate to, or become indistinguishable from, the Authority’s reasoning on its own — fresh — consideration of the protection visa application. That would not be the correct approach, because that is not the purpose for which the power is conferred.
74.As procedural powers designed to permit the Authority in specified and limited circumstances to depart from the primary rule in s 473DB and to have available to itself more material than the delegate did, the Authority is confined to a consideration which is compatible and consistent with this purpose.
75.That is why, in our opinion, Parliament has used the word “credible” in s 473DD(b)(ii) to describe the character of the information a visa applicant seeks to put forward. As Bromberg J said, “credible” means capable of being believed: it is the decision whether the information has that character, as well as the character of being “personal” to the visa applicant, which is to be made at this procedural stage, for the purpose of deciding what the scope of the review material should be, and whether there should be a departure from the primary rule.
76.Particularly in a scheme premised on a review “on the papers”, there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant’s explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa applicant (which would occur in deciding if the new information were “true”). That difficulty is that the Authority is, in substance, taking into account material that is not before it on the review in determining the credibility of the visa applicant. That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority: they cannot be based on extraneous material, which is what “new information” is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 is correct.
77.Viewed 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, there is some overlap, and the factors in (b) may well inform the factors in (a).

In AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90 (“AZT22”) at [63]-[64] per Banks-Smith and Jackson JJ the plurality in the Full Court of the Federal Court observed that the “level of detail” given by the Authority in that matter in considering the new information showed that it “went too far”:
63.…This level of detail, which, taken with the location in the reasons of that assessment, suggests that as a matter of substance the Authority in fact went too far, venturing down the path of undertaking a consideration of the new information that is for all intents and purposes indistinguishable from its fresh review, a course warned against in BTW17 at [73]. Mere use of the language of s 473DD in this part of the reasons does not define the nature of the task undertaken.
64.In fairness to the Authority, its reasons were published before the guidance provided by CSR16 and BTW17. ... This approach may have been well-intentioned, with a view to efficiency, but in the end it has highlighted the need to properly distinguish the distinct conceptual tasks the Authority was required to undertake on its review of the visa refusal decision.
Looking at what the Authority wrote at CB 136 at [7] (set out at [7(d)] above) it can be seen that the Authority:
(a)expressed “serious concerns” about the “reliability” of the MP’s letter;
(b)found that it does not “specifically indicate” that the MP had “actual knowledge” of the events referred to therein;
(c)finds that the details of the events have been expressed in general terms and without mention of their frequency or when they were said to have occurred; and
(d)that it was “not convinced of its corroborative value”,
and immediately thereafter went on to find that it was “not satisfied that there are exceptional circumstances to justify consideration of this new information”.
Something is reliable if it is something “in which reliance or confidence may be put”: The Shorter Oxford Dictionary on Historical Principles (Oxford: Clarendon Press, 1973) p 1787. To suggest, as the Authority decision does, that the MP’s Letter is not reliable is to suggest that its content is untrue because the content is not something in which reliance or confidence may be put. Further to criticise the MP’s letter because the detail of events is in general terms suggests that what the Authority was seeking to find was something in more absolute terms, that is a more exact or truthful account of the events, or something which would directly corroborate ECL19’s claims. This is the type of assessment which goes too far, and has the appearance of actual consideration of the truth of the substance of the issues adverted to in the MP’s Letter as if on a fresh review: AZT22 at [63] per Banks-Smith and Jackson JJ; BTW17 at [73] per Mortimer and Jackson JJ.
The new information was information which needed to be assessed against the requirements in s 473DD(b)(ii), and if that had been properly considered the Authority ought to have found that the new information:
(a)was credible in the sense of not being inherently unbelievable (noting also that it was purported to be written by a Member of Parliament): CSR16 at [40]-[43] per Bromberg J, approved in BTW17 at [62] per Mortimer and Jackson JJ;
(b)was about ECL19’s situation: BDF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 401 at [74] per Kenny J;
(c)was not previously known (to the Minister); and
(d)had it been known, as information about possible future harm to ECL19, it may very well have affected the consideration of his claims: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600 at [34] per Gageler, Keane and Nettle JJ.
In this case, it is plain that the Authority went too far in an AZT22 sense by undertaking a consideration of the new information similar to its task upon the fresh review that it would be required to undertake once it had determined whether or not to admit new information: AZT22 at [63] per Banks-Smith and Jackson JJ; BTW17 at [73] per Mortimer and Jackson JJ, and therefore fell into error by omitting a necessary step in applying s 473DD(b)(ii). The Authority failed to consider a mandatory relevant consideration in relation to new information in a way which may well have affected the Authority Decision were regard to be had to the new information and the possible increased risk of harm to ECL19 on his return to Sri Lanka. The error was therefore material and jurisdictional: LPDT at [7] and [14]-[16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ. There was in this case a realistic possibility that the new information, if considered by the Authority, could have made a difference to its assessment of the risk of harm to ECL19 in the event that he returned to Sri Lanka. There was therefore a jurisdictional error in the Authority Decision in this regard.
Ground 1 of the Amended Judicial Review Application is therefore made out and establishes jurisdictional error in the Authority Decision.
Grounds 2 and 3
Grounds 2 and 3 can be considered together (and both parties made submissions on both grounds together).
Grounds 2 and 3 are as follows:
2.The IAA was legally unreasonable in failing to utilise its powers under s473DC of the Migration Act to obtain information from the Applicant or other source regarding the claim that the Applicant’s father and uncle had disappeared and in what circumstances (“the missing relatives claim”).
Particulars
In the Protection Visa Interview in February 2019 the Applicant raised the missing relatives claim. The Delegate either implicitly accepted this claim, or at the least, did not assert dissatisfaction with it. The claim was rejected by the IAA without any information being sought from the Applicant or any other source, for example, as to the informational gap arising from six years elapse between the two interviews conducted in 2013 and the consideration by the IAA in 2019, as to the fate of the father and uncle.
3.In the alternative to 2. above, the IAA was legally unreasonable in failing to consider utilising its powers under s473DC of the Migration Act to obtain information from the Applicant or other source regarding the missing relatives claim.
Particulars
In the Protection Visa Interview in February 2019 the Applicant raised the missing relatives claim. The Delegate either implicitly accepted this claim, or at the least, did not assert dissatisfaction with it. The claim was rejected by the IAA without any information being sought from the Applicant or any other source, for example, as to the informational gap arising from six years elapse between the two interviews conducted in 2013 and the consideration by the IAA in 2019, as to the fate of the father and uncle.
ECL19’s submissions
In relation to grounds 2 and 3 ECL19 made the following submissions:
(a)the Authority was legally unreasonable in failing to exercise, or failing to consider exercising, its powers under s 473DC to obtain information from ECL19;
(b)after hearing ECL19 at the SHE Visa Interview, the Delegate implicitly accepted ECL19’s claim that his father and Uncle P had disappeared shortly after ECL19 had arrived in Australia: CB 81 and 83 (“Missing Relatives Claim”). The Missing Relatives Claim was not listed by the Delegate amongst matters that it did not accept: CB 84. Having listened to the audio recording of the SHE Visa Interview before the Delegate: CB 135 at [6], the Authority listed the various responses by ECL19 at interviews regarding the Missing Relatives Claim: CB 144 at [43]-[47] and concluded that it was “not satisfied that the applicant’s father and his uncle P have disappeared and/or are missing”: CB 145 at [48];
(c)ECL19’s protection claim rested to a substantial degree on his family’s involvement with the LTTE and the consequent surveillance and aggression from the Sri Lankan authorities. The fate of ECL19’s father and Uncle P were relevant to the protection claim, given that the Delegate accepted that ECL19’s Uncles S and P were monitored by the Sri Lanka authorities because of actual or suspected LTTE involvement: CB 84. It followed that there was an informational gap relating to the Missing Relatives Claim: had they disappeared, as the Delegate appeared to accept, or was the Authority within jurisdiction to assert lack of satisfaction as to the Missing Relatives Claim?;
(d)section 473DC provides a capacity for the Authority to get new information from an applicant. The case law on the Authority’s refusal to use this power indicates that the Authority behaves unreasonably where two premises are satisfied:
(i)where the Authority does not have information on a relevant matter (most obviously where the Delegate beforehand has explored a subject area, and the Authority takes a different view from the Delegate), but the applicant (or another source) may have relevant information: CPP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 199 at [75]-[86] per Besanko J; and
(ii)the Authority will be found to have behaved unreasonably where there exists an “informational gap” between the information as available to, and the findings of the Delegate on the one hand, and the information available to and the findings of the Authority, on the other hand: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439; (2020) 94 ALJR 928; (2020) 383 ALR 407 (“ABT17”);
(e)in ABT17 at [18] per Kiefel CJ, Bell, Gageler and Keane JJ the plurality majority wrote to the effect that unreasonableness, generally, and in the exercise of the s 473DC power to invite the provision of new information, is tested as to (that is “the question becomes”) when, if at all, the implied requirement of reasonableness in performing the Authority’s statutory powers might compel adoption of exercising the powers. This apparent circularity is given flesh in ABT17 by reference to the “informational gap” in that case. The Authority received an oral recording of the delegate’s interview, but not a video recording. The “informational gap” arose from the Authority not having the resources available to the Delegate to make findings as to credit, based in the appreciation of the performance of ECL19 available visually to the delegate, but not to the Authority. The majority plurality in ABT17 referred to the “informational gap” at [13], [14], [16] and [18] per Kiefel CJ, Bell, Gageler and Keane JJ;
(f)the Authority in the instant case damned ECL19’s account of the Missing Relatives Claim by reference to the various interviews conducted after his arrival in 2013, asserting delay in referring to the missing relatives and failure to make reference to this aspect of his claim at early interviews as reasons to regard the claim as having undermined his credibility: CB 144 at [47] (last line). But the “undermining” interviews were conducted in June and July 2013 soon after ECL19 arrived in Australia, and questions arise as to how soon ECL19 received news from his mother of the alleged disappearances, namely:
(i)was it a fact that ECL19 knew of the disappearances at the time of the first interview?; and
(ii)had the disappearances been formalised in a report to police by the time of the second interview?; and
(g)the Delegate may not have sought detailed further reports from ECL19 at the SHE Visa Interview in February 2019, but in the time from mid-2013 until the Authority considered ECL19’s review in September 2019, there may well have been further information available as to the Missing Relatives Claim. There was an informational gap as to the fate of the father and Uncle P that needed to be filled, and the Authority was legally unreasonable in not seeking to close that gap, rather than merely attacking ECL19 for his lack of disclosure at the 2013 interviews, when (to be discussed under Ground 4) he had no, or very scant knowledge as to what had happened to his father and Uncle P. This is particularly so in circumstances where the Delegate had the resources available to make findings as to credit based on the appreciation of the performance of ECL19 during the SHE Visa Interview, whereas the Authority was limited to listening to an audio recording of the SHE Visa Interview.
Minister’s submissions
In relation to grounds 2 and 3 the Minister made the following submissions:
(a)firstly, a number of uncontroversial legal principles about the statutory scheme and legal unreasonableness should be borne in mind. These principles are:
(i)in relation to the statutory scheme, under s 473DB, the Authority’s review is to be based on the review material without accepting or requesting new information;
(ii)that manner of review is subject to s 473DC(1) and (2), which states that the Authority may “get” new information, but it does not have a duty to do so;
(iii)as for legal unreasonableness, a decision which lacks an evident and intelligible justification is unreasonable: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [76] per Hayne, Kiefel and Bell JJ;
(iv)a decision which no reasonable person could have arrived at, or one which is arbitrary or capricious, is unreasonable: NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228; (2002) 123 FCR 298; (2002) 193 ALR 449; (2002) 69 ALD 1 at [26] per Black CJ;
(v)a decision-maker is allowed an area of decisional freedom within which reasonable minds might properly differ: Li at [28] per French CJ and [65]-[66] per Hayne, Kiefel and Bell JJ. Put differently, unreasonableness is not established simply because the Court would have taken a different view of the matter: Li at [30] per French CJ, [75] per Hayne, Kiefel and Bell JJ and [107] per Gageler J;
(vi)emphatic disagreement with a factual finding does not demonstrate any unreasonableness: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; (1999) 73 ALJR 746; (1999) 162 ALR 577; (1999) 54 ALD 289 at [40] per Gleeson CJ and McHugh J; and
(vii)the test for unreasonableness is “necessarily stringent”: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 75 AAR 434; (2018) 357 ALR 405; (2018) 163 ALD 1 (“SZVFW’) at [11] per Kiefel CJ, “extremely confined”: SZVFW at [52] per Gageler J or requires something “in the realm of the extraordinary”: SZVFW at [70] per Gageler J;
(b)with those principles in mind the Authority’s non-exercise of its s 473DC discretion to obtain new information was reasonable, and entirely unsurprising, for the following reasons:
(i)the extent of the Delegate’s acceptance of the Missing Relatives Claim has been overstated. ECL19 presumably advanced the claim as a means to demonstrate his family’s LTTE links and adverse profile. For that reason, ECL19’s family allegedly filed a missing person’s report: CB 81. The Delegate did not, however, find that ECL19’s father and Uncle P disappeared for any reasons associated with the LTTE. Rather, at CB 83 the Delegate inferred that they drowned enroute to Australia:
I note that there has been no suggestion that the applicant's father and [P] were targeted by the officials in any way, and I took the applicant's responses to indicate that his family believe they may have drowned enroute to Australia.
(ii)any focus on the Delegate’s findings is of little moment in any event, as “the delegate’s findings do not control the reasons or findings of the Authority”: BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169; (2017) 253 FCR 448; (2017) 175 ALD 494 (“BMB16”) at [15] per Dowsett J, [38] per Besanko J and [88] per Charlesworth J. Put another way, as has been confirmed by the Full Court of the Federal Court in cases like DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 (“DGZ16”) at [76] per Reeves, Robertson and Rangiah JJ, the Authority is entitled to disagree with a delegate’s evaluation of the material without providing an applicant an opportunity to respond. The principles were reiterated in FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; (2020) 274 FCR 456 at [60] per Bromberg, Davies and O’Bryan JJ, namely that the Authority does not have to invite an applicant to give new information simply because it comes to a different conclusion to that reached by a delegate: see also BJB16 v Minister for Immigration and Border Protection [2018] FCAFC 49; (2018) 260 FCR 116 (“BJB16”) at [71] per Kenny, McKerracher and White JJ;
(iii)the facts of this case then make it readily apparent why the Authority did not obtain new information under s 473DC, whether about the Missing Relatives Claim or otherwise;
(iv)as was recorded by the Authority: CB 135 at [3]-[4], ECL19, who was represented by a migration agent, provided submissions and numerous items of new information. It was entirely reasonable to infer that if ECL19 wanted to provide new information about the Missing Relatives Claim, he would have done so;
(v)at no point did ECL19 (through his representative or otherwise) request that the Authority obtain new information from them. There was therefore nothing “triggering” the Authority to exercise its discretion: DUZ17 v Minister for Home Affairs [2019] FCA 1593 at [51] per Beach J. It is well-settled that it is for an applicant to present their case;
(vi)the Missing Relatives Claim was of no central importance to the ECL19’s broader claims. It should be remembered that the Delegate found that ECL19’s father and Uncle P drowned at sea and did not disappear because of any persecution from the Sri Lankan authorities. If ECL19 wished to disagree with that, he would have provided new information and submissions to do so;
(vii)there was no informational gap as in ABT17. In that case, the delegate made more favourable findings because of their assessment of the applicant’s demeanour. The Authority did not have the opportunity to assess the applicant’s demeanour and made adverse findings. The facts of that case are entirely distinguishable. The Delegate did not make any findings based on ECL19’s demeanour, nor was there any informational gap;
(viii)the lack of an informational gap is demonstrated by the fact that ECL19 attended the SHE Visa Interview with the Delegate in February 2019. The Delegate’s Decision was made in September 2019 and the Authority Decision in October 2019. There was no significant passage of time to warrant the Authority obtaining new information;
(ix)the statutory scheme where the Authority is not required to obtain new information provides a further basis as to why the Authority did not obtain new information under s 473DC;
(x)the Authority’s reasoning about the delay in advancing the Missing Relatives Claim, and its evolution, was otherwise an obvious line of reasoning, such that the Authority was not obliged to exercise its power under s 473DC to obtain new information; and
(xi)the Authority’s lack of express mention of its power in s 473DC does not give rise to any inference that it was not considered because under s 473EA, the Authority is not required to give reasons for its procedural decisions: BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114; (2018) 261 FCR 35 at [41]-[42] and [49] per Flick, Markovich and Banks-Smith JJ, from which an appeal to the High Court was dismissed: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196.
Consideration – grounds 2 and 3

In the Authority Decision at CB 144-145 at [44]-[48] the Authority said as follows:
44.At the protection visa interview the applicant reiterated his claims that his father remains missing, however he further added that his uncle, P is also missing. His father and P had a lot of problems in Sri Lanka. Sri Lankan authorities had gone to the family home and scared them. They had tried to come to Australia. His mother made a report with the police. His family has had no contact with his father or P since.
45.It was put to the applicant by the delegate that at the accelerated processing interview he made no mention of his father had gone missing. He stated that at that stage they expected his father would make contact. He confirmed that a report had been made with the police approximately one and a half months after his father had left. He was asked if there was a copy and could he provide this. He stated he would ask his mother and email it.
46.I have considered the applicant’s explanation for not mentioning these aspects of his claims at his earlier interviews with the Department however I am unpersuaded by them. At the accelerated processing interview, conducted on 15 June 2013 approximately three weeks after his arrival, the applicant indicated his father had gone to Jaffna to buy tobacco. He made no mention of his father’s travel to Jaffna being associated with any fear of harm. In the induction interview, which was conducted on 10 July 2013, approximately seven weeks after his arrival in Australia, the applicant again made no mention of his father's or uncle’s disappearance. At this interview, he was specifically asked about the personal details of his father including where he was currently living. He confirmed that his father was currently residing at the family home in … [address deleted]. I am of the view that the claims regarding the disappearance of his father and uncle are significant, and I am satisfied that had these claims had any credible basis he would have provided them when he had an opportunity to do so at his earlier interviews with the Department. He did not.
47.Furthermore, while the applicant stated that he did not know where his uncle P was at the time of the preparation of his protection visa statement in 2016, he made no mention of his P having sought to travel to Australia with his father, and I consider the delay in the provision of these claims until the protection visa interview further undermines their credibility. Finally, other than the applicant’s assertions, no evidence has been provided to date to substantiate these aspects of his claims, including the police report which he stated his mother had filed.
48.I am not satisfied applicant has been a truthful witness regarding these aspect of his claims. I am not satisfied that the applicant’s father and his uncle P have disappeared and/or are missing.
In ABT17, ABT17 disclosed having been sexually tortured when detained by the Sri Lankan Army. While the delegate found ABT17’s account to be plausible but concluded for other reasons that there was no well-founded fear of persecution, the Authority (having listened to the audio of the delegate’s interview with ABT17) on the basis that ABT17’s account was lacking in detail and that he sounded vague and hesitant was not satisfied that the torture had occurred.
The plurality in ABT17 concluded that it was unreasonable for the Authority not to have used its powers under s 473DC to bridge the informational gap between itself and the delegate by inviting ABT17 to an interview (whether in-person or by video-link). In ABT17 the plurality at [13]-[15] per Kiefel CJ, Bell, Gageler and Keane JJ stated that:
13.However, the potential for a record of an interview conducted in accordance with the Code of Procedure to take a variety of forms creates potential for an informational gap to arise in the review material where an interview with the referred applicant has been conducted by the delegate in person and has been audio recorded but not video recorded. Provision of the audio recording as part of the review material will then not put the Authority in the position of having and being able to examine for itself the totality of the information available to the delegate and required by the Code of Procedure to be considered by the delegate when making the referred decision. Missing from the review material will be a visual impression of how the referred applicant appeared during the interview – his or her demeanour.
14.An informational gap of that nature has potential to impact on the Authority’s assessment of the credibility of the account given by the referred applicant during the audio recorded interview and in turn has potential to impact on the Authority’s assessment of the referred applicant’s overall credibility. “Impressions formed by a decision-maker from the demeanour of an interviewee may be an important aspect of the information available to the decision-maker.”...
15.The potential significance of demeanour is illustrated by the present case. Here, as will be seen, the Authority was troubled by a concern that the appellant's evidence in his audio recorded interview with the delegate was generally lacking detail and at times vague and hesitant. An interview was the obvious means by which the Authority might seek to resolve these matters of concern, given that the Authority was evidently not convinced by the country information alone to uphold the delegate's ultimate decision, however “plausible” the appellant's account of his personal circumstances might be. At an interview the Authority could seek answers in relation to those aspects of the appellant's evidence that troubled the Authority by raising questions which had not previously been raised with the appellant. The Authority could thus develop an informed impression of the credibility of the appellant based on his responses to such questions and an observation of his demeanour. The appellant's responses and the demeanour of the appellant inextricably associated with them would be new information relevant to his personal circumstances.
The paragraphs in the plurality judgment in ABT17 at [23]-[25] per Kiefel CJ, Bell, Gageler and Keane JJ illustrate the importance of factual context:
23.To the extent that the credibility of the referred applicant might bear on whether the Authority is to be satisfied that the criteria for the grant of a protection visa have been met and to the extent that his or her appearance in an interview with the delegate might bear on his or her credibility, it would ordinarily be open to the Authority to form its own assessment of credibility taking into account such second-hand description or impression of his or her appearance as might be conveyed expressly or by implication in the statement forming part of the review material which sets out the delegate's findings of fact and refers to the evidence on which those findings were based. Taking into account any such description or impression of the referred applicant's appearance, it would ordinarily then be open to the Authority to reach an assessment of the referred applicant's credibility without any need for the Authority's assessment of credibility to coincide with the delegate's assessment of credibility.
24.The Minister is therefore correct to say that the Authority is not required to interview a referred applicant merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate.
25.However, the Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given. That is what happened in this case.
In ABT17 Nettle, Edelman and Gordon JJ, each writing separately, similarly found that it was unreasonable for the Authority to overturn a delegate’s finding as to an applicant’s credibility without giving due weight to the advantage enjoyed by a delegate in conducting the in-person interview: ABT17 at [69] per Nettle J, [87] per Gordon J and [112] per Edelman J.
The principles in relation to legal unreasonableness were expounded by the High Court in Li and summarised in Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J. The Court notes the following:
(a)the legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67] per Hayne, Kiefel and Bell JJ; Pandey at [41(f)] per Wigney J;
(b)a decision which lacks an evident and intelligible justification is unreasonable: Li at [76] per Hayne, Kiefel and Bell JJ. Where reasons are given, the supervising court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [28] per French CJ and [105] per Gageler J; Pandey at [41(d)] per Wigney J;
(c)a decision which no reasonable person could have arrived at, or one which is arbitrary or capricious or without common sense or plainly unjust, is, or can be inferred to be, unreasonable: Li at [28] per French CJ and [110] per Gageler J; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [130], [131] and [135] per Crennan and Bell JJ;
(d)a decision-maker is allowed an area of decisional freedom within which reasonable minds might properly differ: Li at [28] per French CJ and [65]-[66] per Hayne, Kiefel and Bell JJ, and thus unreasonableness is not established simply because a court would have taken a different view of the matter: Li at [30] per French CJ, [75] per Hayne, Kiefel and Bell JJ and [107] per Gageler J. It follows that legal reasonableness does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30] per French CJ and [66] per Hayne, Kiefel and Bell JJ; Pandey at [41(j)] per Wigney J;
(e)the test for legal unreasonableness is stringent: Li at [113] per Gageler J; Pandey at [41(j)] per Wigney J; SZVFW at [11] per Kiefel CJ, “extremely confined”, SZVFW at [52] per Gageler J, or requires something in “the realm of the extraordinary”, SZVFW at [70] per Gageler J; and
(f)regard can be had to the outcome of the decision under review, and whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law: Li at [105] per Gageler J; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 at [45] per Allsop CJ, Robertson and Mortimer JJ.
The fact that the Authority took a different view to that of the Delegate does not of itself establish error in the Authority Decision, because the Delegate’s findings do not control the reasons or findings of the Authority: BMB16 at [15] per Dowsett J, [38] per Besanko J and [88] per Charlesworth J. As Besanko J observed in BMB16 at [38] subject to the other provisions in Pt 7AA, “a review under that Part involves a fresh consideration by the Authority of the decision” of the Delegate.
There can be no dispute that the Authority is entitled to reach its own conclusion on the same information as was before the Authority, and indeed to arrive at a different conclusion on that same material: that much is evident from the judgment of the Full Court of the Federal Court in BJB16 at [71] per Kenny, McKerracher and White JJ where it was said that:
We would emphasise that the power of the Authority to reach its own conclusions concerning the documents and other material before it is not dependent on new information coming to light. The Authority is entitled to reach its own conclusion on the same information and arrive at a different result. It is clear from the separate reasons for judgment in BMB16 [v Minister for Immigration and Border Protection [2017] FCAFC 169; (2017) 253 FCR 448; (2017) 157 ALD 494], discussed above at [52], that the findings of the delegate do not control the reasons or findings of the Authority: see BMB16 [15] (Dowsett J), [38] (Besanko J) and [88] (Charlesworth J).
In DGZ16 at [74]-[76] per Reeves, Roberston and Rangiah JJ the Full Court of the Federal Court of Australia found as follows:
74.We do not accept the submission put on behalf of the appellant that the fact that the Authority in the present case accepted as being before it the submissions made by the appellant, and accepted the new information involved in those submissions, implies that the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it formed specific reservations about the appellant’s case, and to provide the appellant with an opportunity to respond.
75.There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.
76.It was open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond.
In this case the Authority made findings on the basis of the same information as was before the Delegate. The Authority did, and was entitled as set out above: BMB16; BJB16; DGZ16, to make different findings to the Delegate on the basis of the common information before both the Delegate and the Authority. Further, there was no significant time gap between the Delegate’s Decision and the Authority Decision, the former being in September 2019 and the latter in October 2019. That was a delay which was short enough, in the circumstances of this case, to preclude there being any informational gap in the information available to the Delegate and the Authority by reason of the delay. And ECL19, who was represented before both the Delegate and the Authority, did not seek to put new information before the Authority as to the now alleged informational gap in the Missing Relatives Claim, which was an alleged informational gap arising prior to the Delegate’s Decision.
ABT17 does not assist ECL19 in this case because there were no findings made by the Delegate on the basis of demeanour.
In the circumstances, there was an adequate evidentiary basis for findings made by the Authority, and for it not to have seek further information from, ECL19, or for the Authority not to interview ECL19, and those were decisions which were not ones which no reasonable decision-maker could make, and they were therefore not lacking in a reasonable or intelligible justification: SZMDS at [130], [131] and [135] per Crennan and Bell JJ. It follows that error on the basis of unreasonableness as alleged in grounds 2 and 3 of the Amended Judicial Review Application is not established by the Authority’s not seeking further information from, or not interviewing, ECL19.
Ground 4
Ground 4 is as follows:
4.The IAA was legally unreasonable in determining against (a) the Applicant’s credibility and (b) the missing relatives claim by reference to the alleged failure by the Applicant to raise his father’s and uncle’s disappearance at the accelerated process interview (“the API”) and the induction interview (“the INDI”).
Particulars
The Applicant arrived in Australia on 26 May 2013. He was told by his mother of his father’s failure to return home “approximately one month after his arrival”. The API was conducted on 15 June 2013, less than a month after the Applicant’s arrival. The INDI was conducted on 10 July 2013. The father’s disappearance was only formally reported to the police after approximately one and a half months. The time from the Applicant’s arrival until the INDI was 45 days, which is approximately one and a half months. The failure to disclose the father’s disappearance arose from (A) not knowing of that fact in the case of the API; and (B) the matter being subject of report only about the time of the INDI. These scenarios cannot support findings of lack of credit, and the unreasonable refusal by the IAA to accept the disappearance of close relatives has obvious impact on the Applicant’s protection claim.
ECL19’s submissions
ECL19’s submissions in relation to ground 4 were as follows:
(a)the Authority was legally unreasonable in determining against ECL19’s credit by reference to the alleged failure to raise the Missing Relatives Claim at interviews conducted in the two months after his arrival in Australia;
(b)at CB 144 at [45]-[46] the Authority referred to the Delegate asking at the February 2019 SHE Visa Interview why ECL19 had not raised the disappearance of his father at the AP Interview conducted on 15 June 2013. As the Authority noted that was approximately three weeks after ECL19’s arrival in Australia. The Authority went on to note that at the Induction Interview conducted on 10 July 2013, approximately seven weeks after ECL19’s arrival in Australia, that ECL19 again made no mention of his father’s disappearance;
(c)the explanation by ECL19, as recorded by the Authority, was that ECL19’s mother only told him of his father’s disappearance approximately one month after his arrival in Australia (ECL19’s arrival date being 26 May 2013): CB 144 at [43]. The Delegate at CB 81 recorded ECL19 as indicating that his father disappeared “soon after” ECL19 arrived in Australia. The Delegate inferred that the father went missing in under one month after ECL19 arrived in Australia, that is, about 1 to 22 June 2013. ECL19’s mother had told him that she had reported the father’s disappearance to the police, but there had been no investigation, and that his mother did not know what had happened to his father, but suspected that his disappearance was related to his escape from Sri Lanka. ECL19 told the Delegate that his mother did not report the father’s disappearance to the police until approximately one and a half months after the father had left, that is, approximately 15 July to 8 August 2013;
(d)ECL19 told the Delegate that he did not raise his father’s disappearance at earlier interviews as he thought that his father would make contact: CB 81;
(e)examination of the dates above reveals that ECL19 did not know of his father’s disappearance at the time of the AP Interview on 15 June 2013 (told of father being missing by his mother a month after he arrived on 26 May 2013), and that the mother had not yet filed a report with the police at the time of the Induction Interview on 10 July 2013;
(f)the father and Uncle P’s disappearance emerges as a much more serious matter by 2019 than it was in the period June to July 2013 when ECL19 was being interviewed. The Authority found that the Missing Relatives Claim were “significant”: CB 144 at [46], but was “satisfied” that if the claims had a credible basis ECL19 “would have provided them when he had an opportunity to do so at his earlier interviews… ”. The Authority went on to find delay in this aspect of the claim as undermining ECL19’s credibility: CB 144 at [47], and was not satisfied as to ECL19 being a truthful witness regarding the Missing Relatives Claim, or indeed that the father and Uncle P had disappeared: CB 145 at [48];
(g)given the timeline of events, that news of the father having disappeared had not reached ECL19 at the time of the AP Interview, and that at the time of the Induction Interview a report had not yet been made to the police (supporting ECL19’s statement that he thought at that stage his father would “make contact”), the Authority’s lack of satisfaction is irrational or illogical, and hence unreasonable;
(h)unreasonably reached findings by the Authority may amount to jurisdictional error: SZMDS at [131] and [135] per Crennan and Bell JJ. In order to establish jurisdictional error “extreme” illogicality must be demonstrated, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41 (“SZRKT”) at [97]-[98] and [148] per Robertson J. See SZRKT also at [77]-[78] per Robertson J regarding unreasonableness relating to findings of credit, as going to jurisdictional error; and
(i)the finding of the Authority regarding ECL19’s alleged failure to disclose the disappearance of his relatives was illogical and irrational, and so a basis for review: SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2010) 289 ALR 463; (2012) 127 ALD 1 at [52] per McKerracher J; SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 at [25]-[26] per Gordon J on determinations having to be made judicially, and WAGO v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437; (2002) 194 ALR 676 at [54] per Lee and RD Nicholson JJ (Carr J agreeing) on “unwarranted assumptions”, which phrase sums up the approach of the Authority to the missing relatives claim.
Minister’s submissions

The Minister’s submissions in relation to ground 4 were as follows:
(a)the Authority was not satisfied that the Missing Relatives Claim was credible. This was because:
(i)as was also noted by the Delegate, ECL19 did not mention his father’s purported disappearance at the AP Interview: CB 144 at [45]. ECL19’s explanation was that he thought his father would eventually make contact, and not because of any lack of knowledge of his father’s disappearance;
(ii)ECL19 said he would provide the missing person’s report, but never did so: CB 144 at [45] and CB 144-145 at [47]. There was no evidence to substantiate the Missing Relatives Claims: CB 144-145 at [47];
(iii)ECL19’s previous explanation as to his father’s whereabouts was that he travelled to Jaffna to buy tobacco: CB 144 at [46]. He said his father was residing in their home city, and there was no mention of his father or Uncle P’s disappearance or attempts to travel to Australia: CB 144 at [46]; and
(iv)there was no mention of ECL19’s uncle’s disappearance in ECL19’s statement in 2016: CB 144-145 at [47];
(b)none of the above findings reveals any unreasonableness in the Authority’s reasoning. Rather, they were logical and intelligible. To the extent ECL19 says different findings ought to have been made and has proffered reasons as to why ECL19 did not advance the Missing Relatives Claim earlier, that is impermissible merits review. Those explanations were not provided to the Authority;
(c)the relevant principles on illogicality are well-settled, namely that the illogicality demonstrated must be extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one which reasonable minds may come to different conclusions: SZRKT at [148] per Robertson J. Given the reasonableness of the Authority’s findings, the Minister submits that for the same reasons set out above, no illogicality has been demonstrated by ECL19. The Minister otherwise emphasises that the Court should exercise caution when considering the rationality or logicality of a decision, as such arguments can “too readily be used to conceal what is in truth simply an attack of the merits” of a decision, as is demonstrated by this ground: Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 at [55]-[56] per Wigney J.
Consideration - ground 4
In relation to the general principles with respect to unreasonableness they are set out at [37] above.
In relation to illogicality and unreasonableness a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion: SZMDS at [131], [132] and [135] per Crennan and Bell JJ, but a decision may be unreasonable if it lacks an evident and intelligible justification: Li at [76] Hayne, Kiefel and Bell JJ.
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. Further in order for jurisdictional error to be found a finding must reach a threshold of “extreme illogicality”: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641 at [4] and [30] per Kenny, Kerr and Perry JJ.
ECL19’s submissions on ground 4 are beset by difficulty. They include:
(a)ECL19’s explanation in the AP Interview – that he thought his father would eventually make contact – is curious: both against the almost banal explanation that his father had gone to Jaffna to buy tobacco, an explanation made without any connection with a fear of harm: CB 144 at [46], and against the earlier claimed interactions between his family (including his father) and the Sri Lankan authorities because of their LTTE connections: see, for example, CB 141-142 at [31] which was, having regard to ECL19’s alleged fear of harm, a much more logical explanation to be made or at least raised as a possibility. Furthermore, the explanation provides evidence that by mid-June 2013 ECL19 knew his father was missing, or at the very least that it was a distinct possibility, which supports the Authority’s consideration of the timing of ECL19’s 2013 AP and Induction Interviews upon arrival in Australia and the lack of disclosure by ECL19 at that stage that his father was missing;
(b)ECL19’s failure to provide a copy of the missing person’s report for his father, from which it might be inferred there was no such report; and
(c)critically, the failure to raise the Missing Relative’s Claim at all in his 2016 written statement concerning his protection claims. By 2016, and to quote from ECL19’s submissions the Missing Relative’s Claim (and in particular that his father was allegedly missing) would by that time have “emerged as a much more serious matter” such that its omission from the written statement must be almost inexplicable, unless the claim be untrue.
The matters referred to immediately above provide a sufficiently logical and rational basis for the Authority to determine that ECL19 had not been a truthful witness with respect to these aspects of his claim, and for the Authority to conclude that it was not satisfied as to the Missing Relative’s Claim: CB 145 at [48].
In the circumstances, there was therefore no error in relation to the Authority’s consideration of ECL19’s failure to raise the Missing Relative’s Claim earlier than he did, and the consequent finding as to ECL19’s credibility in this respect. Ground 4 of the Amended Judicial Review Application is therefore not made out and does not establish jurisdictional error in the Authority Decision.
CONCLUSION AND ORDER
The Court has concluded that:
(a)ground 1 of the Amended Judicial Review Application has been made out, and discloses jurisdictional error in the Authority Decision; and
(b)grounds 2, 3 and 4 of the Amended Judicial Review Application have not been made out and do not establish jurisdictional error in the Authority Decision.
It follows, therefore, that the Authority Decision is affected by jurisdictional error. Writs of certiorari and mandamus will accordingly issue, with the latter writ directing that the Administrative Review Tribunal re-determine the review of the decision of the Delegate of the Minister made on 4 September 2019 and determine it according to law: Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Rules 2024 (Cth), rr 11 and 12.
The Court will hear the parties as to costs.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.
Associate:
Dated: 27 May 2025

File number(s):	ADG 405 of 2019
Judgment of:	JUDGE LUCEV
Date of judgment:	27 May 2025
Catchwords:	MIGRATION – Judicial review application – decision of Immigration Assessment Authority – citizen of Sri Lanka – whether proper consideration given to whether exceptional circumstances existed to justify considering new information – whether assessment of whether new information was credible personal information – whether legally unreasonable to fail to utilise powers to obtain information from the applicant or other sources – whether legally unreasonable determinations concerning the applicant’s credibility and alleged failure to raise issues – whether jurisdictional error – writs issued WORDS AND PHRASES – “reliable”
Legislation:	Migration Act 1958 (Cth) Pt 7AA, ss 473DB, 473DC, 473DD, 473EA, 474, 476 Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Rules 2024 (Cth), rr 11, 12 Immigrants and Emigrants Act 1948 (Sri Lanka) Prevention of Terrorism (Temporary Provisions) Act 1979 (Sri Lanka)
Cases cited:	The Shorter Oxford Dictionary on Historical Principles (Oxford: Clarendon Press, 1973) ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439; (2020) 94 ALJR 928; (2020) 383 ALR 407 ALJ18 v Minister for Home Affairs [2020] FCA 491 APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 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; (2005) 87 ALD 512 ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847 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 BJB16 v Minister for Immigration and Border Protection [2018] FCAFC 49; (2018) 260 FCR 116 BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169; (2017) 253 FCR 448; (2017) 175 ALD 494 BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114; (2018) 261 FCR 35 BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196 BVZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1803 CPP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 199 CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641 DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 DUZ17 v Minister for Home Affairs [2019] FCA 1593 FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; (2020) 274 FCR 456 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; (2018) 260 FCR 482 Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 75 AAR 434; (2018) 357 ALR 405; (2018) 163 ALD 1 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; (1999) 73 ALJR 746; (1999) 162 ALR 577; (1999) 54 ALD 289 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 294 FCR 150; (2020) 171 ALD 477 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464 NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228; (2002) 123 FCR 298; (2002) 193 ALR 449; (2002) 69 ALD 1 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600 Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 90 ALJR 197; (2015) 327 ALR 8; (2015) 148 ALD 206 SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1; (2010) 289 ALR 463; (2012) 127 ALD 1 WAGO v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437; (2002) 194 ALR 676
Division:	Division 2 General Federal Law
Number of paragraphs:	55
Date of last submission/s:	3 July 2024
Date of hearing:	3 July 2024
Place:	Perth
Counsel for the Applicant:	Mr S Churches
Solicitor for the Applicant:	LK Law
Counsel for the First Respondent:	Mr A Chan
Solicitor for the Respondents:	Sparke Helmore Lawyers
Second Respondent:	Submitting appearance, save as to costs

ADG 405 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	ECL19 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

ORDER MADE BY:	JUDGE LUCEV
DATE OF ORDER:	27 MAY 2025