Egq17 v Minister for Immigration, Citizenship and Multicultural Affairs - [2022] FedCFamC2G 582

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EGQ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 582

File number(s): MLG 2042 of 2017

Judgment of: JUDGE MANSINI

Date of judgment: 19 July 2022

Catchwords: MIGRATION – Application for judicial review of decision of Immigration Assessment Authority – safe haven enterprise (subclass 790) visa – new information – legal unreasonableness – interpretation of s.437DD and s.437DC – application dismissed.

Legislation:
Migration Act 1958 (Cth) ss. 5H, 5J, 36(2)(a), 36(2)(aa), 36(2A), 46A(2), 65, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF, 473EA, 474, 476

Privacy Act1988 (Cth) s.5

Cases cited:
ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439

AUS17 v Minister for Immigration & Border Protection (2020) 269 CLR 494

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

BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443

BOS17 v Minister for Immigration & Border Protection (2020) 170 ALD 1

BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29

CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641

Craig v South Australia (1995) 184 CLR 163

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

DBO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 795

DDK16 v Minister for Immigration and Border Protection [2017] FCAFC 188

DGZ16 Minister for Immigration & Border Protection (2018) 258 FCR 551

DPI17 v Minister for Home Affairs [2019] FCAFC 43

DVO16 v Minister for Immigration and Border Protection [2021] 95 ALJR 375;

EJK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 50

Hossain v Minister for Immigration & Border Protection (2018) 264 CLR 123

Minister for Home Affairs v DUA16 (2020) 95 ALJR 54

Minister for Home Affairs v Omar [2019] FCAFC 188, 272 FCR 589

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210

Minister for Immigration and Border Protection v SZMTA (2018) 264 CLR 421

Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16

Minister for Immigration and Citizenship v Li [2013] 249 CLR 332

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Plaintiff M1/2021 v Minister for Home Affairs (2022) ALR 417

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] 264 CLR 217

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Tickner v Chapman (1995) 57 FCR 451

Division: Division 2 General Federal Law

Number of paragraphs: 195

Date of last submission/s: 2 May 2022

Date of hearing: 2 May 2022

Place: Melbourne

Counsel for the Applicant: Mr Krohn of Counsel

Solicitor for the Applicant: Ambi Associates

Counsel for the First Respondent: Ms Mills of Counsel

Solicitor for the First Respondent: Mills Oakley
ORDERS

MLG 2042 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
EGQ17
Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent

ORDER MADE BY:

JUDGE MANSINI

DATE OF ORDER:

19 JULY 2022

THE COURT ORDERS THAT:
1.The name of the First Respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship and Multicultural Affairs.
2.The Applicant have leave, now for then, to amend the particulars to Ground 3 of his amended application.
3.The application as amended on 4 April 2022 and 2 May 2022 be dismissed.
4.The Applicant pay the costs of the First Respondent fixed in the sum of $6,500.

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).

IN SUMMARY

[1]

CONTEXT

[5]

The facts

[5]

Authority’s decision

[12]

Procedural history

[25]

THIS APPLICATION FOR JUDICIAL REVIEW

[33]

Statutory framework

[35]

GROUND 1 – FAILURE TO CONSIDER NEW INFORMATION

[47]

Applicable principles

[54]

Particular (a) – rejections of the four Articles under s.473DD

[58]

Particular (b) – absence of “active intellectual engagement”

[92]

Particular (c) – evaluation of real chance of serious harm or significant harm while detained in Sri Lanka

[110]

Resolution of Ground 1

[117]

GROUND 2 – LEGAL UNREASONABLENESS

[124]

Applicable principles – legal unreasonableness

[126]

Particular (a) – rejections of the four additional Articles under s.473DD (repetition of Particular (a) in Ground 1)

[131]

Particular (b) –rejection of claims as to family profile and threat of arrest

[138]

Particular (c) – failure to find that ill-treatment or abuse in detention would be serious or significant harm (repetition of Particulars (b)-(c) in Ground 1)

[149]

Particular (d) – rejection of close links to LTTE

[156]

Resolution of Ground 2

[164]

GROUND 3 – ERRONEOUS INTERPRETATION OF S.473DD AND S.473DC

[167]

Applicable principles

[170]

Particular (a) – rejections of the four additional Articles under s.473DD (repetition of Particular (a) in Ground 1)

[175]

Particular (b) – rejection of claims as to family profile and threat of arrest (repetition of Particular (b) in Ground 2)

[184]

Resolution of Ground 3

[193]

CONCLUSION

[195]

REASONS FOR JUDGMENT
JUDGE MANSINI
IN SUMMARY

Judicial review is sought of a decision of the Immigration Assessment Authority (Authority). The Authority, in its decision, affirmed a decision of a delegate of the Minister by which the Applicant was refused a safe haven enterprise visa (visa) pursuant to s.65 of the Migration Act 1958 (Cth) (Act).
Common to each of the three grounds of review before the Court was the Authority’s rejection of certain media articles that had not been before the administrative decision maker at first instance, because it was not “new information”. The particulars also variously complained of the assessment of the likely consequences for the Applicant on return to Sri Lanka and the rejection of his claims regarding close family links and threats.
Essentially, the grounds reformulated a complaint of jurisdictional error on three alternative bases: failure to consider; that the failure to do so was legally unreasonable; and such failure involved a misinterpretation or misapplication of ss.473DD and 473DC of the Act.
There being no identification of jurisdictional error, the application as amended is dismissed. The reasons for the decision to dismiss the application follow.
CONTEXT
The facts
The Applicant, a male citizen of Sri Lanka, arrived in Australia on 4 November 2012 as an unauthorised maritime arrival. He is now aged 41 years.
On 10 December 2015, the Minister lifted the statutory bar under s.46A(2) of the Act thereby allowing the Applicant an opportunity to lodge an application for a protection visa. On 29 November 2016, the Applicant applied for the visa and attached a statement which included his claims for protection.
On 13 April 2017 and again on 9 May 2017, the Applicant was interviewed by a delegate of the Minister. Two interviews were conducted with the Applicant by reason of apparent difficulties encountered with the interpreter who had been provided to assist in the initial interview process. The first interview was conducted by telephone whilst the second was conducted in person. Upon review, the Authority concluded that the delegate had been dismissive and critical in interviewing the Applicant and for that reason was satisfied exceptional circumstances were shown to justify it in considering the Applicant’s further evidence put before the Authority as “new information”: s.473DD(a) of the Act and reasons of the Authority at [5].
On 29 June 2017, the delegate made a decision to refuse the visa application. The delegate’s decision recorded findings accepting that the Applicant was a Tamil from the north of Sri Lanka who had two siblings that had been forcibly recruited by the Liberation Tigers of Tamil Eelam (LTTE) and had died while fighting for LTTE. The delegate accepted the Applicant’s mother had wanted him to leave Sri Lanka in pursuit of work and a better life. The delegate also accepted that, in general, Tamils were subjected to societal discrimination in Sri Lanka and, relatedly, that on occasion the Applicant had not been paid for his services when working as a taxi driver.
However, the delegate did not accept that the Applicant’s family had been targeted by Sri Lankan authorities by reason of a family connection to the LTTE. Nor did the delegate accept that the Applicant had personally been subjected to discrimination. The delegate also did not accept that the Applicant’s brother-in-law was a member of the organisation Sri-Telo. The delegate did not accept that the Applicant had a profile that separated him from the general population of Tamils that were able to live and work in Sri Lanka. In the result, the application was refused because the delegate was not satisfied the Applicant was a refugee or a person in respect of whom Australia owed complementary protection obligations: ss.36(2)(a) and 36(2)(aa) of the Act.
Part 7AA of the Act provides a “fast track review process” in relation to certain protection visa decisions. On 11 July 2017, the delegate’s decision was referred to the Authority. By letter of that date, the Applicant was notified of the referral and to which was attached an information sheet and practice direction which included information about the provision of “new information” to the Authority informing him that “new information” could only be considered if “exceptional circumstances” were shown.
Relevant to each of the three grounds of review (as amended), on 31 July 2017 the Applicant’s representative sent to the Authority a submission which included (among other things) quoted extracts from, and links to, five media articles which were not before the delegate at the time of the delegate’s decision. As earlier referenced, the Authority accepted that one of those articles contained “new information” and that “exceptional circumstances” existed as to justify it being considered in the process of its fast track review. As concerned the other four articles (Articles) the Authority concluded they were not “new information” and, as “exceptional circumstances” were not shown, did not accept those Articles for the purposes of review. In each of the Applicant’s three grounds of review (as amended), the Applicant’s substantive complaint hinges on the rejection of those Articles as “new information” - which had the consequence that the Authority declined to consider the information in those Articles when undertaking its process of fast track review.
Authority’s decision
On 29 August 2017, the Authority made a decision affirming the delegate’s decision and provided a statement of reasons for that decision (Reasons).
As relevant to each of the grounds of review (as amended), the Authority at [3]-[7] outlined the material to which it had regard and provided reasons for accepting and not accepting the additional information that was not in the visa application or raised at interview before the delegate but had been provided by the Applicant to the Authority on 31 July 2017. The Authority accepted at [5] that parts of the Applicant’s submission containing further evidence of the Applicant be treated as “new information” which would be considered on review being satisfied there were “exceptional circumstances” (due to the interviewer’s “dismissive and critical” demeanour). The Authority also accepted at [6] that an article from The Guardian dated 14 July 2017 was “new information” (as it post-dated the delegate’s decision) and that “exceptional circumstances” were shown as to justify it being considered on review. As concerned the other Articles (which pre-dated the delegate’s decision), the Authority was not satisfied they could not have been provided to the delegate before that decision was made and at [7] concluded that “exceptional circumstances” were not shown as to justify considering those articles as “new information” for the purposes of the review.
The Applicant’s amended grounds of review focused, in particular, upon the Reasons at [7], [24], [26], [42]-[47], [49] and [57]. In those parts of the Reasons, the Authority explained:
·at [7], why it was not satisfied exceptional circumstances were shown as would justify it in considering the Articles as new information;
·related to its assessment of whether the Applicant was a “refugee” within the meaning of ss.5H(1) and 5J of the Act: at [24], why it was not satisfied the Applicant’s family profile was such that they were then currently being monitored by Sri Lankan authorities; at [26], why it did not accept the Applicant would be identified as a person with close family links to former LTTE combatants if he returned to Sri Lanka; at [42]-[47], its reasons for rejecting the Applicant’s claim that he had a well-founded fear of harm if he returned to Sri Lanka by reason that he had departed from that country illegally; at [49] (and for similar reasons, why the Applicant’s claim to fear harm as a failed asylum seeker was rejected); and
·at [57], why it was not satisfied a process of questioning, brief detention, a fine or other penalty would constitute “significant harm” as defined in the Act for the purposes of the Applicant’s claim to complementary protection: s.36(2A),
·These aspects of the Reasons are considered below.
The Authority summarised the Applicant’s claims for protection at [8] as follows:
•The applicant and his family were displaced during the war. His home village of Masar was under the control of the LTTE prior to 2009.
•The applicant’s elder brother was forcibly recruited into the LTTE in 1990, and his elder sister was forcibly recruited in 1995.
•The applicant’s sister was killed in 1998. His brother died in 2009.
•The applicant studied to be an electrician as university education was difficult for Tamils to obtain. He worked in Qatar as an electrician for two years from 2006.
•Upon the applicant’s return, his mother arranged for him to be married so that he was not targeted by the LTTE as a single person.
•The applicant’s parents were forced to move into a refugee camp in 2009. After they were released, the EPDP and the CID monitored the family. The EPDP would spy on individuals and pass on messages to the CID. The applicant was taken into custody and questioned.
•The CID and police came at regular intervals to the auto stand, where the applicant was a driver. They would block his way, and not pay him if they hired his rickshaw. His livelihood was destroyed. The EPDP also used to observe his movements.
•The applicant used to move between Masar and Vavuniya to avoid attention. He also travelled to India two or three times.
•The CID and EPDP were not aware that the applicant’s brother had died in 2009. The applicant resembled him, and he was suspected of being his brother. As a result, he continued to face questioning from the army.
•The applicant’s wife’s brother-in-law was the person in charge of the Vavuniya district for SRI-TELO. He was an informant and this caused unrest in the family. The applicant had to sell his rickshaw in 2011. The unrest led to the applicant being separated from his wife in 2013 after his arrival in Australia. His ex-wife has entered into a relationship with someone who has links with the CID, and they are out to take revenge on him.
•The applicant’s parents received demands for money on the basis that the applicant was living overseas.
•Tamils are being discriminated against.
Refugee assessment
The Authority assessed whether the Applicant was a “refugee” within the meaning of ss.5H(1) and 5J of the Act: Reasons, [15]-[53]. The Authority referenced findings of: an absence of any close family links of the Applicant to the LTTE, absence of past harm to the Applicant from the Criminal Investigation Department (CID), the army and/or Eelam People’s Democratic Party (EPDP) – particularly in the three-year period between the end of the war and the Applicant’s departure from Sri Lanka, the absence of past or contemporaneous harm to the Applicant’s family, and no real chance of harm now or in the foreseeable future to the Applicant on the basis of his Tamil ethnicity: Reasons, [26]-[28].
The Authority was not satisfied that the Applicant faced a real chance of serious harm from the Sri Lankan authorities due to an imputed pro-LTTE or anti-Sri Lankan government political opinion, due to his Tamil ethnicity, his deceased brother or sister’s LTTE involvement or his residence in a former LTTE controlled area. That conclusion was expressed as being reached having regard to the information that there had been a significant decrease in the monitoring and harassment of Tamils, and that the Applicant did not fall within any of the categories of person identified by the United Nations High Commissioner for Refugees (UNHCR) as being in need of protection. Further, that the country information in the referred materials also indicated that the conditions for Tamils had materially changed for the better in the five years since the Applicant had left Sri Lanka. The Authority then considered risk of harm under headings of: Discrimination; Family Issues; Extortion; Illegal departure; Failed asylum seeker.
Although the application for judicial review focused upon the Reasons addressing the topics Illegal departure and Failed asylum seeker, contextually, it may be noted in relation to its consideration of the Applicant’s claims and evidence that the Authority:
(a)accepted the Applicant’s sister and brother had been forcibly recruited into the LTTE and subsequently died: Reasons, [18];
(b)did not accept the claims that the Sri Lankan authorities were not aware of his brother’s death or that the Applicant was later mistaken for his brother following the registration of his brother’s death in January 2010: Reasons, [20]-[21];
(c)accepted that, in the past, the Applicant and other members of his family had been questioned and threatened, but not beaten, tortured or detained, by the CID, the army and/or EPDP; the EPDP forcing him to sell newspapers, on occasion, without payment: Reasons, [22];
(d)did not accept that the profile of the Applicant’s family was such that they were currently being monitored by the Sri Lankan authorities or that the authorities had told his family in 2017 that he would be arrested at the airport on his return: Reasons, [24];
(e)did not accept that, if he returned to Sri Lanka, the Applicant would be identified as a person with close family links to former LTTE combatants: Reasons, [26];
(f)paid regard to country information that there had been a significant decrease in the monitoring and harassment of Tamils including that the Applicant did not fall within any of the categories of persons identified by UNHRC as requiring protection: Reasons, [28];
(g)was not satisfied the Applicant would be subjected to discrimination or economic hardship which would threaten his capacity to subsist or expose him to a risk of serious harm within the meaning of s 5J(5) of the Act: Reasons, [29]-[31];
(h)concluded the Applicant had fabricated claims that he was separated from his wife and/or that his wife was now in a relationship with persons having links to the CID. It also found that the Applicant had fabricated other claims in relation to his wife’s brother-in-law: Reasons, [32]-[36];
(i)did not accept, and regarded as implausible, the Applicant’s claim and evidence to having been subject to extortion: Reasons, [37]-[39];
(j)accepted that having departed Sri Lanka without a passport the Applicant had thereby committed an offence under the local Immigrants and Emigrants Act (IAEA) and so would be likely to be charged, for which charge he would be fined but then released, with it being unlikely he would face any chance of imprisonment: Reasons, [41]-[47]. For similar reasons, the Authority accepted that if the Applicant returned to Sri Lanka, he would do so as a failed asylum seeker; however, it concluded he would not face a real chance of harm for that reason either: Reasons, [48]-[49].

The Authority considered, individually and collectively, the Applicant’s claims and known circumstances. It was not satisfied that the Applicant had a well-founded fear of persecution for those reasons or the combination of reasons of his race, religion, nationality, membership of a particular social group and/or political opinion, now or in the reasonably foreseeable future, if he returned to Sri Lanka: Reasons, [52].
The Authority concluded that the Applicant did not meet the criteria of the definition of “refugee” in s.5H(1) and, accordingly, did not meet the criteria for a protection visa under s.36(2)(a) of the Act.
Complementary protection assessment
The Authority then considered, for the purposes of complementary protection under s.36(2)(aa) of the Act, whether there was a real risk that the Applicant would suffer “significant harm” if removed to Sri Lanka: Reasons, [54]-[60]: s.36(2A) of the Act.
The Authority referred to earlier findings that any questioning process, brief detention, fine or penalty that the Applicant might face on return to Sri Lanka due to his illegal departure would not be persecution, it stated that the provisions and penalties of the IAEA were laws of general application that were not discriminatory in their terms or applied in a discriminatory way or were selectively enforced. In so finding, the Authority also had regard to any harm the Applicant may face arising from his being charged with an offence under the IAEA and whether this amounted to significant harm: Reasons, [56]. The Authority found at [57]:
I am not satisfied that any brief detention, questioning, fine or other penalty would amount to significant harm as defined under the Act. I accept that the applicant may be remanded in custody for a short period either at the airport or at a prison, while waiting to be brought before a magistrate. I have found the applicant has no specific profile that would result in a longer detention, custodial sentence or additional interrogation. DFAT advises that the risk of torture or mistreatment for people suspected of an offence under the IAEA is low. I find that the likelihood that the applicant will be detained in prison is remote, but if he does I accept the applicant may experience poor prison conditions during his detention. Critically, I note that country information indicates the poor conditions are due to overcrowding, poor sanitation and lack of resources. I find there is no real risk that the applicant will be arbitrarily deprived of his life or be tortured. While the conditions are poor, I find there is no intention to inflict pain or suffering or extreme humiliation. In these circumstances, the poor prison conditions to which he applicant may be subject do not of themselves constitute significant harm as defined under the Act. I am not satisfied that, individually or cumulatively, any processes or penalties the applicant may encounter under the IAEA, would constitute significant harm as exhaustively defined under ss.36(2A) and 5 of the Act.
The Authority considered the consequences of the Applicant’s illegal departure upon his return to Sri Lanka, the level of societal discrimination of Tamils and the balance of the Applicant’s claims (individually and cumulatively) before concluding it was not satisfied that any processes or penalties the Applicant may encounter under the IAEA would constitute “significant harm” as exhaustively defined, relevantly, by s.36(2A) of the Act. The Authority then considered discrimination and the balance of the Applicant’s claims before concluding that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the Applicant would suffer significant harm: Reasons, [58]-[59].
For those reasons, the Authority was not satisfied that the criteria for complementary protection provided by ss.36(2)(aa) and 36(2A) had been satisfied: Reasons, [60].
Procedural history
On 22 September 2017, the Applicant lodged his application for judicial review together with an affidavit exhibiting a copy of the Reasons and adducing no other evidence.
On 26 October 2017, a response was filed on behalf of the First Respondent contending that the decision of the Authority was not affected by jurisdictional error.
Procedural orders were made on 29 May 2018 (amended by consent on 8 April 2022), the matter was set down for final hearing, a court book was filed and the parties filed and served submissions.
On 4 April 2022, the Applicant filed an amended application by which he variously abandoned and supplied further substituted or amended particulars to his grounds of review.
On 6 April 2022, a supplementary court book was filed.
On 27 April 2022, the parties were notified that this matter was listed for final hearing before the Court as presently constituted.
In the course of the hearing, on 2 May 2022, a further amendment was proposed in relation to Ground 3 which was not opposed. Both parties were content to make oral submissions and did not seek to file written submissions in relation to this amendment.
Ultimately, by his amended application, the Applicant sought that the Authority’s decision be quashed and a writ of mandamus issue requiring the Authority, the Tribunal or the Minister to determine his application according to law.
THIS APPLICATION FOR JUDICIAL REVIEW
A “privative clause decision” as defined at s.474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76].
As aptly summarised by Kelly J in BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443 [19]–[20], the task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163, 175.
Statutory framework
The grant of a protection visa is confined by the criteria at s.36 of the Act. Relevant to the present application, at s.36(2)(a) and (aa), the Act provides that “a” criterion for a protection visa is that the applicant for the visa is:
·a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a “refugee”: s.36(2)(a), see also ss.5H and 5J for the meaning of “refugee” and meaning of “well-founded fear of persecution”; or
·a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer “significant harm”: s.36(2)(aa). See also s.36(2A) for the meaning of “significant harm”.
An administrative decision maker is required to refuse to issue a visa absent the requisite satisfaction that the criteria applicable to the visa application are satisfied: s.65.
Division 3 of Part 7AA of the Act governs the conduct of a review by the Authority of a “fast track reviewable decision” which includes an administrative decision to refuse to grant a protection visa to a “fast track applicant”.
As concerns the present application, the statutory framework and principles applicable to the conduct of a fast track review by the Authority are outlined below. In particular, those provisions (at ss.473DC and 473DD) which govern the “getting” and “considering” of any new information.
“New information”
Part 7AA of the Act is arranged in eight divisions comprising ss.473BA-473JF.
Division 1 of Part 7AA commences with a self-described “simplified outline” at s.473BA including that Part 7AA provides a limited form of review in relation to the decisions known as fast track reviewable decisions and that decisions of this kind must be referred by the Minister to the Authority as soon as reasonably practicable after a decision has been made. A fast track applicant cannot apply for review directly to the Authority and decisions of this kind are otherwise generally not reviewable under the Act. Further, in conducting its review, that the Authority is required to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3. The Authority does not hold hearings and is required to conduct its review on the papers save that, in exceptional circumstances, it may consider new material and may invite a referred applicant to provide, or comment on, new information.
In Division 2 of Part 7AA, s.473CB provides that the Secretary must give to the Authority certain review material and must do so at the same time as, or as soon as reasonably practicable after, referring the decision to the Authority.
Division 3 of Part 7AA, which concerns the subject, “Conduct of review”, is arranged in three subdivisions comprising ss.473DA-473DF.
Section 473DA provides that Division 3 (among two other provisions which are presently immaterial) is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority.
Section 473DB provides that, subject to Part 7AA, the Authority must review a fast track reviewable decision that has been referred to it by considering the review material provided to it and must do so “without accepting or requesting new information” and “without interviewing the referred applicant.”
Of central importance to the present application is Subdivision C of Part 7AA, comprised of ss.473DC – 473DF which read:
Subdivision C – Additional information
473DC Getting new information
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b)        the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)       in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
473DD           Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
473DE Certain new information must be given to referred applicant
(1) The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a) give to the referred applicant particulars of any new information, but only if the new information:
(i)has been, or is to be, considered by the Authority under section 473DD; and
(ii)would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b) explain to the referred applicant why the new information is relevant to the review; and
(c)invite the referred applicant, orally or in writing, to give comments on the new information:
(i)        in writing; or
(ii)at an interview, whether conducted in person, by telephone or in any other way.
(2)The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.
(3)       Subsection (1) does not apply to new information that:
(a)is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or
(b)is non-disclosable information; or
(c)is prescribed by regulation for the purposes of this paragraph.
Note: Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
473DF Invitation to give new information or comments in writing or at interview
(1)       This section applies if a referred applicant is:
(a)invited under section 473DC to give new information in writing or at an interview; or
(b)invited under section 473DE to give comments on new information in writing or at an interview.
(2)The information or comments are to be given within a period that is prescribed by regulation and specified in the invitation.
(3)The Immigration Assessment Authority may determine the manner in which, and the place and time at which, an interview is to be conducted.
(4)If the referred applicant does not give the new information or comments in accordance with the invitation, the Immigration Assessment Authority may make a decision on the review:
(a)without taking any further action to get the information or the referred applicant's comments on the information; or
(b)without taking any further action to allow or enable the referred applicant to take part in a further interview.
By s.473EA of the Act, a decision of the Authority on Part 7AA review must be accompanied by a written statement which sets out both “the decision” on review and “the reasons for the decision”.
GROUND 1 – FAILURE TO CONSIDER NEW INFORMATION
Ground 1 of the amended application reads (omitting underlining):
The Second Respondent (the Authority) fell into jurisdictional error in that it failed to consider a relevant consideration, integer of the claim, or material question raised by the material before the Authority.
Particulars
a)The Authority did not consider pursuant to s.473DD of the Migration Act a number of articles submitted to the Authority by the Applicant. (Decision and Reasons [7])
b)The Authority did not consider with an intellectual engagement whether there was a real chance the Applicant may suffer serious harm or significant harm while in detention by reason of being in detention under the control of the police or other authorities, whether by assault or torture or intentional harm. This was a necessary question, given the material before the Authority relating to torture and the abuse of human rights in Sri Lanka (Cf. Decision and Reasons, [42]-[47], [49], [57]).
c)The Authority did not consider whether the combination of: the examination of the applicant on his future return to Sri Lanka by Intelligence and by CID, the applicant’s family links to LTTE, and his return to Sri Lanka as an illegal emigrant and failed asylum seeker, may cause him to have a real chance that he may suffer serious harm or significant harm while in detention, whether by a longer period in detention, or by assault or torture or other intentional harm. This was a necessary question, given the material before the Authority relating to torture and the abuse of human rights in Sri Lanka. (Cf. Decision and Reasons, [42]-[47], [49], [57])
As will appear, there is a significant overlap in the subject matters relied upon by way of particulars to each of the three grounds of review (as amended). Ground 1 might have been framed in more precise terms. It did not distinctly identify what was the relevant consideration, the integer of the claim or the material question raised by the material before the Authority which had not been considered on the fast track review. To some extent, the more precise identification of those matters was informed by the Particulars.
Particular (a) to Ground 1 contended that the Authority fell into jurisdictional error in that it failed to consider pursuant to s.473DD the Articles submitted to it.
Particular (b) contended there had been a failure by the Authority to consider with an actual intellectual engagement, whether there was a real chance the Applicant may suffer “serious harm or significant harm” while in detention by reason of the matters in the Reasons at [42]-[47], [49], [57] (being matters related to detention by the police or other authorities).
Particular (c) contended there had been a failure on the part of the Authority to consider, in combination, a series of factors that may cause the Applicant to have a real chance of suffering “serious harm or significant harm”.
These Particulars (b) and (c) plainly complain of the Authority’s approach to the refugee assessment at s.36(2)(a) and also appeared to import the language of “significant harm” from the s.36(2)(aa) complementary protection assessment – albeit, and whilst it may be accepted that little if anything turns on it, the threshold being expressed as “real chance” rather than “real risk”.
As Particulars (a)-(c) to Ground 1 indicate, in seeking to demonstrate jurisdictional error, the Applicant began by reference to the rejection in the Reasons at [7] (where the Authority declined to consider the Articles), then pointed to the Reasons at [42]-[47], [49] and [57] (where the Authority addressed the Applicant’s claims to fear harm on the basis that he had departed Sri Lanka illegally, and thus would be treated upon return as a failed asylum seeker) and also considered, for the purposes of its complementary protection assessment, whether the potential consequences of returning to Sri Lanka would amount to “significant harm” as defined by s.36(2A) of the Act.
Applicable principles
As an initial observation, s.473DC (Getting new information) is expressed in permissive terms - the Authority may get new information. In contrast, s.473DD (Considering new information in exceptional circumstances) is expressed in proscriptive terms - the Authority must not consider new information, unless certain cumulative and alternative requirements of that section are satisfied.
In EJK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 50 at [72]-[73], the meaning of the phrase “new information” together with the principles to be applied for the purposes of ss.473DC and 473DD were described as follows:
For the purposes of Pt 7AA, the phrase ‘new information’ means, subject to that Part, any document or information of an evidentiary nature that was not before the Minister when the decision was made under s 65 to refuse the application and which the Authority considers may be relevant: s 473DC(1); AUS17, [3]; DUA16 (2020) 95 ALJR 54, [25]. In AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407 at [33], Allsop CJ observed that “information will be relevant if it is capable of rationally affecting the IAA’s assessment of the probability of the existence of some fact about which the IAA might be required to make a finding in determining afresh whether or not to be satisfied that the criteria for the grant of a protection visa have been met.” The Chief Justice noted ‘information’ could not “sensibly be read as extending beyond knowledge of facts or circumstances relating to material or documentation of an evidentiary nature”: [2021] FCA 407, [33]; see also DPI17 v Minister for Immigration and Border Protection, (2019) 336 ALR 665, at [35] (Griffiths and Steward JJ); Plaintiff M174/2016, (2018) 353 ALR 600, [21] (Gageler, Keane and Nettle JJ, Gordon and Edelman JJ agreeing); AWT19 [2021] FCAFC 58, [60]-[63], [67], [76].
Ultimately, the power to ‘consider’ new information is not available unless the criteria for doing so are met. To this end, s 473DD imposes a duty to assess such new information in making a decision whether it may proceed to ‘consider’ it. In AUS17, the plurality held at [6]:
. . . s 473DD must be construed to impose a duty on the Authority to assess new information that it has got against the specified criteria. Having performed that duty to assess the new information against the specified criteria, the Authority must take that new information into account in making its decision on the review if those criteria are met and must not take that new information into account in making its decision on the review if those criteria are not met.

In BDF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 401 (BDF17), Kenny J held at [64]:
To meet the requirement in s 473DD(b)(ii), the IAA must be satisfied that the information is new information given, or proposed to be given, by the referred applicant, which: (1) is credible information about an identified individual, or an individual who is reasonably identifiable; (2) was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant’s claims: see Plaintiff M174 at [34].
See also AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 (AUS17) [2]-[12], [23]-[24]; DVO16 v Minister for Immigration and Border Protection [2021] 95 ALJR 375 (DVO16) at [16]-[21].
Notwithstanding the significant overlap of the subject matter of each ground, the Applicant urged the Court to consider each ground of review as separate and distinct. Accordingly, it is necessary to examine the subject matter of each of the Particulars to each Ground.
Particular (a) – rejections of the four Articles under s.473DD
The Applicant contended for jurisdictional error in the Authority’s rejection of the four Articles under s.473DD, ultimately challenging the Authority’s findings in relation to both ss.473DD(b)(i) and (b)(ii).
The argument in relation to s.473DD(b)(i) was developed orally and not addressed in written submissions. As I understood the Applicant’s oral submission, it was contended that the four additional Articles contained material which could not have been before the delegate on the basis that the material was explicitly in response to the delegate’s reasons. The Applicant pointed to the Authority’s finding as to the interviewer’s “dismissive and critical demeanour” which was the basis of its satisfaction that some of the new information “could not” have been provided at the interview and that “exceptional circumstances” existed for the Authority to consider the information. And, on parity of reasoning, the Authority ought to have found the references to the Articles could not have been before the delegate prior to its decision since they were responsive to that decision.
It was also argued that the statutory context is important and s.473DD(b)(i) should operate as a “sensible filter” to capture any such information that may have existed before the delegate’s decision was made but was only put to the Authority in response to the delegate’s decision.
The Applicant also (in written and oral submissions) contended that the Authority’s refusal to consider the information in the Articles was a jurisdictional error because the “new information” was “credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims” within the meaning of s.473DD(b)(ii) of the Act. It was submitted that the information was “personal” because each of the Articles contained information about an identified, or reasonably identified individual(s) albeit that none of the Articles related to the Applicant.
The Applicant referred to extracts of the Articles in support of his submission that it was personal information within s.473DD, in each case said to establish a “tight connection” between the information about Sri Lanka and the named person and so was sufficient to classify the information as “personal information” within the meaning of s.473DD.
The Applicant characterised the information in three of the Articles as being about an enduring prevalence of torture and abuse of human rights in Sri Lanka and said it may well have affected the consideration of the Applicant’s claims, particularly in the context of the Authority’s findings that the Applicant had two siblings that had been LTTE cadres, were killed fighting in the civil war and that the Applicant himself may be detained for a short time in prison on his return to Sri Lanka. The fourth of the Articles, had it been known, was said to be relevant to the Applicant’s claim of fear regarding Sri Telo because his (ex-)wife’s brother-in-law was the person in charge of the Vavuniya district for Sri Telo.
The Applicant further submitted that the Authority ought to have found from: the nature of the claims to fear harm, the siblings who had been fighters in the LTTE, coupled with the prospect of his detention, meant there were “exceptional circumstances” within the scope of s.473DD(a) to consider the additional Articles, and that the gravity of the harm feared meant the Authority could not reasonably or lawfully find that it could discharge its task under the Act if it should close its mind to the material, and not find exceptional circumstances were made out to consider it under s.473DD(a).
The First Respondent submitted that no error was committed by the Authority because the information in the Articles was not “personal information” for the purposes of the Act. Further, that even if the information was personal information it was not new information for the purpose of s.473DD(b)(ii) as, had it been known, it was not capable of rationally affecting the assessment of the probability of the existence of some fact about which the Authority might be required to make a finding.
Having raised that s.473DD(b)(i) was not addressed in written submissions, the First Respondent nonetheless addressed the Applicant’s oral submissions on this point at the hearing. It submitted that the Applicant had not referred to any particular part of the delegate’s decision to which the material in the Articles is said to respond or that is inconsistent with the Department of Foreign Affairs and Trade (DFAT) Report of Country Information dated 24 January 2017. The First Respondent referred to DBO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 795, [36] in which it said the Court considered a similar submission. In that case, Mercuri J found that there was “some force” to the contention that the fact of a submission alone (to the extent new or further information was put in response to a delegate’s decision) “does not fall within the concept of information which could not have been provided to the delegate”. The First Respondent strongly argued that, in this case, the Applicant had not articulated a proper basis as to why the further information was necessarily responsive and could not have been put before the delegate in order for this ground to succeed.
The First Respondent further contended that, there being no error in the Authority’s approach to s.473DD(b), it had been correct to conclude there was no basis for a finding of “exceptional circumstances” to justify considering the information under s.473DD(a).
Consideration of Particular (a)
The Applicant contends that “the Authority did not consider pursuant to s.473DD of the Migration Act a number of articles submitted to the Authority by the Applicant.” For this purpose, attention was drawn to the Reasons at [7]. If Particular (a) was to be understood as suggesting that the Authority had not considered whether to exercise the power conferred by s.473DD it cannot be correct. It clearly did so. If it is to be understood as meaning that the Authority had erred in refusing to consider the Articles for the purposes of conducting the fast track review it would ignore that, by s.473DD, the Authority was prohibited from doing so unless one or other of the cumulative criteria in that section had been satisfied. The first particular seemed to conflate the anterior need for the Authority to consider whether to exercise the power conferred by s.473DD to include the Articles as “new information” with the process of considering such Articles when conducting its fast track review pursuant to s.473CC. It expressed, in a conclusory way, that the Authority had decided at [7] to reject the Applicant’s request to consider the remaining Articles as “new information”. Particular (a) of Ground 1 did not illuminate why the rejection of those four Articles constituted a failure to consider them “pursuant to s 473DD” or why any supposed failure involved jurisdictional error that was material to the decision.
In its Reasons, the Authority concluded at [7]:
The submission also refers to and attaches a number of other articles. All of the remaining articles pre-date the delegate’s decision. I am not satisfied that the articles could not have been provided to the delegate before the decision was made, nor am I satisfied that it is credible personal information that was not previously known. I am not satisfied that s 473DD(b) is met. Considering all of the circumstances I am also not satisfied that there are exceptional circumstances to justify considering the new information.
In support of Ground 1, the Applicant identified a series of settled principles which were not in dispute and so may be summarised (without reference to authority), as follows: An administrative decision-maker is obliged to consider each necessary and relevant consideration and each integer of a claim before it. In doing so, it must consider material questions of fact squarely raised on the material. Failure to do so may entail jurisdictional error where consideration has not been given to important information placed before it. By extension, a failure to have regard to information of that calibre can be an error of law and signify jurisdictional error. Such decision-makers are required to engage in an active intellectual way in the consideration of relevant material.
In deference to the Applicant’s submissions, I note that in Minister for Home Affairs v Omar [2019] FCAFC 188 (Omar), a five-member Full Court stated at [37]-[38]:
The Minister’s obligation to engage in an active intellectual process with significant and clearly expressed relevant representations made in support of a revocation request is also consistent with the following observations of the Chief Justice in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 364 ALR 423 at [3] (with whom Markovic and Steward JJ agreed):
By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
In short, as the respondent’s counsel on the appeal (Mr Wood) put it, the Assistant Minister has to take responsibility for what he is doing. This responsibility has both a political and a legal dimension.
(Emphasis in original)
It was the Applicant’s contention that where, as here, the Authority has given reasons, an omission to address in those reasons a question of finding on a material issue may support an inference that the Authority had not considered it to be material, and so indicate jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [5] (Yusuf), (Gleeson CJ), [69], [75], [82]-[84] (McHugh, Gummow and Hayne JJ). Without detracting from the force of that general principle, it must also be recognised that Yusuf was decided in a different statutory framework under the Act. In Division 3 of Part 7AA, the power conferred by s.473DD to consider new information is a procedural power which is constrained by the requirement that the Authority is satisfied that there are “exceptional circumstances” to justify it in doing so. Being a procedural power, the Authority was under no obligation to give reasons for its exercise or non-exercise of the power conferred by s.473DD. I accept it is now settled that the Authority is not obliged to give comprehensive reasons for a determination regarding the exercise of the power conferred by s.473DD including in relation to the non-acceptance of “exceptional circumstances”: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29, [40] (BVD17); BDF17 at [46]-[47], [68], [78].
There was no debate that the Authority was obliged to assess “new information”, first against the criteria specified in ss.473DD(b)(i) and (ii) and only then as against the criteria specified in s.473DD(a). By extension, if neither of the criteria specified in s.473DD(b)(i) or (ii) were satisfied, the Authority was prohibited from taking the new information into account. For that reason, if the criteria in s.473DD(b) were not satisfied, consideration of the new information as against the criterion specified in s.473DD(a) was entirely redundant: see AUS17, [11] (Kiefel CJ, Gageler, Keane and Gordon JJ).
As the Reasons at [7] confirm, in this case the Authority did address each limb of s.473DD and did so in the order commended by the majority in AUS17.
Although the Authority accepted as “new information” the fifth article (The Guardian article dated 14 July 2017), at the point of considering that information it preferred other information contained in the DFAT Report as being “more reliable”: Reasons, [27]. That was because the information in the DFAT report was considered to be “consistent with the other country information in the referred material including from the US Department of State and the UK home Office”: Reasons, [27].
As to the four other Articles referred to in the Applicant’s submissions and evidence, they were as follows:
(a)Oakland Institute, “International Truth and Justice Project Exposes Horrific Human Rights Abuses in Sri Lanka” (ITJP) dated 7 January 2016: the article referred to a new report by the ITJP referring to new evidence of torture and sexual violence perpetrated by the Sri Lankan security forces in 2015 and the displacement of many thousands of persons in the North East of the country. Complaint was made upon the need for government to be accountable;
(b)Al Jazeera, “UN raises concerns over abuses, torture in Sri Lanka” dated 3 March 2017: the article referred to the persistence in abuse and torture of the need for authorities to investigate and prosecute such claims;
(c)Ceylon News, “Not safe’ for asylum seekers to return, says Wigneswaran” dated 5 October 2016: this article acknowledged 17 cases of brutality or torture that had occurred since January 2015. The person interviewed also stated that this “reflected the ground reality that ambience in the country is much better today”;
(d)Asian Tribune, “Sri Telo in the Northern Provincial Council Election Fray” dated 10 April 2013: the article related to a forthcoming election and of a new young Tamil leader who had shown interest in being elected including that his party had decided to field two candidates.
I have re-examined each of those Articles.
It is not controversial that the four additional Articles pre-dated and therefore already existed at the time of the delegate’s decision but were not provided by the Applicant to the delegate of the Minister before the delegate’s decision.
The Authority recorded in its Reasons that the interviewer’s demeanour was “dismissive and critical”: Reasons, at [5]. That remark may, in the absence of any further context and at its highest, underscore a finding that the “new information” subject of this particular could not have been provided in the interview with the delegate. However, beyond and separate to the interview that did proceed, the Applicant was afforded the opportunity to have put all relevant materials before the delegate, including in writing. On inspection of the substance of the four additional Articles, they contain “country information” and their subject matter goes directly to the assessment (as to whether there was “a real chance of serious harm” and/or a “real risk of significant harm”) that the delegate was required to conduct in considering the Applicant’s application pursuant to ss.36(2)(a) and (aa).
Whilst I accept it is conceivable that there may be an appropriate case for considering new information that is effectively responsive to a decision of a delegate of the First Respondent pursuant to s.473DD(b)(i), in the present case I do not accept that the Applicant could not have provided the Minister with the four additional Articles or the information contained in those four Articles before the delegate made the decision. The Applicant was represented at all relevant times by a migration agent. The Applicant was afforded opportunity to put written materials to the delegate. The delegate’s ultimate interpretation of the country information that was before him, and resultant refusal of the visa, could have been anticipated and addressed by tabling the four additional Articles before the delegate made its decision.
It falls then to consider whether the Applicant could demonstrate error on the part of the Authority in the asserted failure to consider the Articles by demonstrating that the criteria in s.473DD(b)(ii) were satisfied: namely, that the information in those four additional Articles was credible and personal, was not previously known and, had it been known, may have affected the consideration of the Applicant’s claims. Indeed, in support of this Ground, the Applicant contended the information in the Articles was credible personal information and that exceptional circumstances justified its being considered.
There was no dispute that the information in those Articles was “credible”, that is, information that was not “inherently unbelievable” or capable of being accepted by the Authority as truthful: CSR16 v Minister for Immigration & Border Protection [2018] FCA 474, [40]-[43]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159, [62].
Nor was there any dispute that the information in those Articles was not previously known, relevantly in this case, to the Minister: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] 211 CLR 217, [33]-[34] (Plaintiff M174).
In the result, the determinative issue was whether, within the meaning of s.473DD(b)(ii) of the Act, the information in those Articles was “personal information.”
Section 5 of the Act provides that the expression “personal information” has the same meaning as in the Privacy Act 1988 (Cth):
personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(a) whether the information or opinion is true or not; and
(b) whether the information or opinion is recorded in a material form or not.
See also Plaintiff M174/2016, [33]-[34]; BDF17, [74].

In BOS17 v Minister for Immigration & Border Protection (2020) 170 ALD 1 at [59] (BOS17), O’Bryan J concluded that an essential aspect of the definition of “personal information” was that “the information is about an identified individual or an individual who is reasonably identifiable. Information is not personal information merely because the information refers to an identified individual.” In that case, his Honour accepted that although certain articles (as in this case), referred to President Sirisina and others, the information they contained could not be characterised as “being about those persons.” In my view, the point that O’Bryan J sought to emphasise was that in the phrase “personal information”, the adjective “personal” was employed to qualify the nature of the “information” to which s.473DD(b)(ii) referred. This aspect of the reasoning in BOS17 has been followed on number of occasions including, most recently, in BDF17 at [77] (per Kenny J). I recognise, however, that O’Bryan J at [59] also accepted the application of s.473DD(b)(ii) “may be difficult in a given case”.
It may be accepted that the information in each of those Articles related to one or more identified individuals: namely, President Sirisena, Anuradha Mittal, a United Nation’s High Commissioner for Human Rights, three members of the Sri Lankan government, the Northern Chief Minister of Sri Lanka and the Sec General of Sri Telo. Adopting the reasoning in BOS17, and having re-examined the information contained in each of the four Articles, I do not consider that it constituted “personal information” within the meaning of s.473DD(b)(ii).
I also accept the First Respondent’s submission that even if, contrary to my conclusion, the information in the Articles was “personal information” it was nonetheless not “new information” because had such information been known to the Minister it was not capable of rationally affecting the assessment of the probability of the matters in issue: s.473DD(b)(ii). As Kenny J observed in BDF17 at [77], “In so far as country information includes other information, including information about an identifiable individual (other than the referred applicant . . .), it will not be relevant to the IAA’s review.” Her Honour concluded:
In so far as it relates to an identifiable individual, country information will therefore generally not be ‘new information’ for the purposes of s 473DD(b)(ii) even though it may constitute ‘personal information’ for the purposes of the Migration Act.
I agree with the submission for the First Respondent that, irrespective of whether the information in the Articles was or was not “personal information” within the meaning of s.473DD(b)(ii), it was not relevant for the purposes of the fast track review by the Authority because it was not “new information.”
Upon the principles stated by the High Court in AUS17 at [11], since the criteria in neither s.473DD(b)(i) nor (ii) was satisfied, any consideration of s.473DD(a) was redundant.
For the above reasons, contrary to the matters relied upon under Particular (a) of Ground 1, the rejection by the Authority of the Articles did not involve a failure to consider those matters “pursuant to section 473DD of the Act.”
Particular (b) – absence of “active intellectual engagement”
In the application as amended, the Applicant accepted that “some of this material” (including the DFAT report) was referred to by the delegate but contended that the delegate had not considered “at all” in his reasons the question of possible harm to the Applicant in detention or during or because of the process of investigation upon his return to Sri Lanka.
In contrast, it was accepted that the Authority had given consideration to what might happen to the Applicant as a returned illegal emigrant and failed asylum seeker. What was contended as against the Authority was that in doing so there were only general references to “country information” (that is, apart from the references to the DFAT report, which the Authority preferred over earlier reports). In this context, the Applicant alleged no statement or reasons were given about any risk of harm to the Applicant while he might be in detention, including during a short time in prison, which the delegate had accepted as a possibility. The Applicant pointed to aspects of the DFAT report which he contended was material of enough substance to squarely raise the question of whether the Applicant might suffer ill-treatment precisely as a person detained. It was submitted that the Authority did not consider the question at all in relation to the assessment of the claim to be a refugee and did not “grapple with” – as opposed to merely noting – important divisions in assessments between the DFAT report and other “country information”.
Ultimately, the Applicant contended that more was required of an “actual intellectual engagement” with the question of whether the Applicant had a real chance of suffering serious harm or significant harm while in detention on his return as an illegal emigrant, when this was a question squarely raised on the material before it, including the material before it relating to the abuse of human rights and torture in Sri Lanka.
For the First Respondent, it was contended that, contrary to the Applicant’s characterisation, the Authority’s record of reasons demonstrated that it considered with an actual intellectual engagement whether there was a real chance that the Applicant may suffer serious harm or significant harm while being in detention. And, in any event, it argued that a failure to refer specifically in the Authority’s decision to the relevant parts or paragraphs of the DFAT report does not mean that it was not considered at all, but may mean it was considered “but found it not to be material”: Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16, [34].
Consideration of Particular (b)
The nature of the “actual intellectual engagement” required of an administrative decision-maker was considered by the Full Court in Omar at [36] and drawn from the statement by Kiefel J in Tickner v Chapman (1995) 57 FCR 451 at 495:
The intellectual process preceding the decision of which s 10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say.
See also Tickner v Chapman (1995) 57 FCR 451 at 462 (Black CJ) and 476 (Burchett J).
More recently, in Plaintiff M1/2021 v Minister for Home Affairs (2022) ALR 417 (Plaintiff M1/2021), the plurality (Kiefel CJ, Keane, Gordon and Steward JJ) held at [26]-[27]:
Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision‑maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker.
None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision‑maker's reasons discloses that the decision‑maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
See also Plaintiff M1/2021 at [78] (Edelman J) and [106] (Gleeson J).
Without detracting from the importance of the principle which requires administrative decision-makers to engage properly with the claims and evidence before them, the further point made by the High Court in Plaintiff M1/2021 and earlier authorities is that the requisite level of engagement by the decision-maker with “the representations must occur within the bounds of rationality and reasonableness”, and at the same time, “what is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations”: Plaintiff M1/2021 at [25] (Kiefel CJ, Keane, Gordon and Steward JJ, footnotes omitted). In short, a proportionate response is to be expected of decision-makers that reflect the nature of the claims and evidence adduced by the visa applicant.
It is not to the point to contend that the delegate had not considered “at all” in his reasons the question of possible harm to the Applicant in detention or during or upon his return to Sri Lanka. This Court has no jurisdiction to review the decision of a delegate: Act, s.476(2)(a). I do not consider that this complaint is of substance.
First, and in any event, the country information had been referred to by the delegate by way of two footnotes. On the face of the delegate’s decision, the Authority accepted that the Applicant had departed Sri Lanka illegally and, on account, would likely be charged or fined under the IAEA but would not face any chance of imprisonment.
Second, to the extent it is of relevance, it is because the delegate’s decision comprised part of the “review material” that was given to the Authority: s.473CB(1)(a).
Third, as was accepted, the Authority had given consideration to what might happen to the Applicant as a returned illegal emigrant and failed asylum seeker. The Authority did not ignore, overlook or misunderstand relevant facts or materials or claims. As is plain on the face of the decision, the Authority had regard to all of the evidence before it and “considered the applicant’s claims individually and cumulatively, as well as considering the personal circumstances of the applicant.”: Reasons, [52].
Fourth, the Authority contemplated the possibility of a period of detention for several days pending an opportunity to appear before a magistrate. It also noted the absence of a profile that would elevate the penalty in the Applicant’s case and that the Applicant’s circumstance was not distinguished from that of an “ordinary illegal departee” and “low profile departee”. Consideration was given to loss of liberty and the conditions in such detention (poor hygiene etc.) before concluding at [46]:
While I accept that conditions in Sri Lankan prisons are poor due to a lack of resources, overcrowding and poor sanitation, I find that any questioning and detention the applicant may experience would be brief and would not constitute serious harm as inexhaustibly defined in the Act.
Fifth, the Authority also considered that the Applicant would return to Sri Lanka as a failed asylum seeker. However, it was not satisfied the Applicant would be harmed by the Sri Lankan authorities “for this reason”. The Authority acknowledged some reports of returnees being harmed where there were substantial links to LTTE or outstanding warrants – however, it was concluded at [49] that the information before the Authority “does not suggest the applicant is a person with that kind of profile.”
Sixth, the Authority’s reasons plainly disclose a consideration of the likely consequences of the Applicant’s return to Sri Lanka having illegally departed in contravention of the IAEA and as a failed asylum seeker including that the Applicant may (and likely would) be detained for a short period (ie. “days”). The assessment of a risk of serious or significant harm proceeded against the context of the Authority’s earlier rejection of the Applicant’s claims of a real chance of harm now or in the foreseeable future because of close family links to the LTTE, and past harm, including threats to the Applicant and/or his family. The Authority acknowledged other country information and a particular reliance on the DFAT report: Reasons, [27] and [50].
Seventh, the Applicant’s criticism included that the Authority did not engage with certain parts of the DFAT report. The highlighted passages included acknowledgement of ongoing reports of torture of Sri Lankans. I agree that the DFAT report is fairly characterised as accepting some such risk to returning Sri Lankans in the Applicant’s circumstances. However, the DFAT report noted that few reports of torture were proved or disproved and a small number of allegations of torture or mistreatment raised by asylum seekers were not able to be verified or were made a long time after the torture was alleged to have occurred. Ultimately, DFAT assessed the risk of mistreatment that could amount to torture as being low and further, that the risk of torture or mistreatment of returnees was low and reducing. Other country information also referred to alleged reports of torture but made no specific assessment as to level of risk.
Eighth, in considering the Applicant’s claims, the Authority expressly had regard to the contents of the DFAT report and other country information before it and justified its preference to the DFAT report, acknowledged risk(s) to the Applicant, weighed relevant considerations and adopted DFAT’s assessment of a low risk before concluding a lack of serious harm or significant harm.
Ninth, mere disagreement with the Authority’s reading of the country information does not amount to jurisdictional error. This is not a case where the Authority failed to consider a claim made by reference to country information. Rather, the Authority did consider the claims made but came to a conclusion contrary to that advanced by the Applicant. In my view, the Authority’s finding was supported by a rational process of reasoning and supported by the material before it.
Finally, I do not discern a failure to consider a relevant consideration, including to consider with an actual intellectual engagement, the country information before the Authority regarding what might happen to the Applicant on return as an illegal emigrant or whether there was a real chance the Applicant may suffer serious harm or significant harm while in detention.
Particular (c) – evaluation of real chance of serious harm or significant harm while detained in Sri Lanka
Particular (c) was pressed in brief and as a “further alternative” to Particular (b).
The Applicant submitted that the question of whether the combination of:
the examination of the applicant on his future return to Sri Lanka by Intelligence and by CID, the Applicant’s family links to LTTE, and his return to Sri Lanka as an illegal emigrant and failed asylum seeker, may cause him to have a real chance that he may suffer serious harm or significant harm while in detention, whether by a longer period in detention, or by assault or torture or other intentional harm. This was also a necessary question, squarely arising on the material before the Authority relating to torture and abuse of human rights in Sri Lanka.
The Applicant submitted that the Authority did not “grapple with” this question and that the Authority’s reasons at [57] were not an adequate engagement with the breadth and depth of the material before the Authority.
For the First Respondent it was contended that the Authority did consider this combination of factors and, in any event, was not required to conduct this kind of cumulative assessment. Reliance was placed on the Full Court’s decision in DDK16 v Minister for Immigration and Border Protection [2017] FCAFC 188. There, Gilmour, Markovic and O’Callaghan JJ at [34] stated: “as a matter of inexorable logic that if … all individual claims or bases for establishing an entitlement to a visa are dismissed … then no amount of ‘cumulative consideration’ of those rejected claims is capable of producing a different result.” Upon that principle, it was contended that likewise in this case, as a matter of inexorable logic, no amount of cumulation of the Applicant’s rejected claim(s) was capable of producing a different result in this case. I agree.
Consideration of Particular (c)
On the face of its reasons, the Authority did consider each of the factors subject of this particular individually. The Authority stated at [52] in relation to the consideration of the refugee criterion under s.36(2)(a):
I have had regard to all of the evidence before me and I have considered the applicant’s claims individually and cumulatively, as well as considering the personal circumstances of the applicant. I am not satisfied the applicant has a well-founded fear of persecution for reason or combination of his race, religion, nationality, membership of a particular social group and/or political opinion now or in the reasonably foreseeable future, if he returns to Sri Lanka.
Further at [57], the Authority stated in relation to the consideration of complementary protection under s.36(2)(aa):
I am not satisfied that any brief detention, questioning, fine or other penalty would amount to significant harm as defined under the Act. I accept that the applicant may be remanded in custody for a short period either at the airport or at a prison, while waiting to be brought before a magistrate. I have found the applicant has no specific profile that would result in a longer detention, custodial sentence or additional interrogation. DFAT advises that the risk of torture or mistreatment for people suspected of an offence under the IAEA is low. I find that the likelihood that the applicant will be detained in prison is remote, but if he does I accept the applicant may experience poor prison conditions during his detention. Critically, I note that country information indicates the poor conditions are due to overcrowding, poor sanitation and lack of resources. I find there is no real risk that the applicant will be arbitrarily deprived of his life or be tortured. While the conditions are poor, I find there is no intention to inflict pain or suffering or extreme humiliation. In these circumstances, the poor prison conditions to which he applicant may be subject do not of themselves constitute significant harm as defined under the Act. I am not satisfied that, individually or cumulatively, any processes or penalties the applicant may encounter under the IAEA, would constitute significant harm as exhaustively defined under ss.36(2A) and 5 of the Act.
It may be accepted that there was no detailed analysis of the Authority’s assessment of cumulative risk on the face of the Reasons. However, the Authority did analyse each claim (and, as the amended grounds of review confirm, the contrary was not suggested). Having done so, the Authority concluded each was a non-risk or low-risk. I am satisfied that the Authority plainly considered the claims both individually and cumulatively and assessed neither the individual nor the cumulative risk as amounting to either: a well-founded fear of persecution or a real chance of serious harm; or a real risk of significant harm. That is, notwithstanding that the Authority assessed there was some low risk that the Applicant may be subjected to societal discrimination due to his ethnicity and that he may be remanded in custody for a short period of time upon his return to Sri Lanka due to his illegal departure, the Authority did not find either factor to amount to a real chance of serious or significant harm. That is an assessment the Authority was entitled to make on the materials before it. I identify no jurisdictional error in this regard.
Resolution of Ground 1

Whether there was a realistic possibility that the Authority’s decision might have been different had the Articles been considered was an ordinary question of fact in respect of which the Applicant bore the onus of proof and was to be determined upon the inferences properly to be drawn from the evidence adduced on judicial review: Hossain v Minister for Immigration & Border Protection (2018) 264 CLR 123, [30]-[31] (Kiefel CJ, Gageler and Keane JJ) (Hossain); Minister for Immigration & Border Protection v SZMTA (2018) 264 CLR 421, [2]-[3], [45]-[46] (Bell, Gageler and Keane JJ).
In light of the above findings it is not strictly necessary to determine the question of whether any error was material, however, for the reasons below, had the Authority’s decision not to consider the information in the four Articles been tainted by error, I would not have regarded such error as being material to its decision to affirm the delegate’s decision and for that reason, any suggested error was not jurisdictional.
Concerning Particular (a), the fifth article contained country information including about the terrorism legislation and allegations of ongoing torture of Tamils and detention of returned asylum seekers, and the Authority did not prefer it over the DFAT report because the DFAT report was more current and consistent with other country information before the Authority. Further, the Authority did not accept certain of the Applicant’s claims of specific threats or risks on an assessment of the facts in the material before it. In the context of those factual findings, the four Articles in question could not have resulted in the Authority making a different decision and as such, no jurisdictional error would arise: Hossain, [30].
Concerning Particular (b), the Authority had separately concluded there was no chance of imprisonment and a short period of detention pending access to a magistrate. Again, in context of findings that the Applicant’s profile did not elevate his risk beyond that of an ordinary and low profile illegal departee, there was not a realistic possibility that the Authority’s decision could have been different had there been greater engagement in the Reasons with the real chance of serious harm or real risk of significant harm.
Concerning Particular (c), I do not consider that any error was such that the Authority could have come to a different conclusion. The Authority found that various of the Applicant’s individual claims were unfounded. In my view, even the cumulation of those unfounded claims would not, as a matter of logic, have led to a different result.
Further, even if there was a failure in the application of ss.473DD(b)(i) or 473DD(b)(ii) as is subject of this Ground 1, I agree that such error was not sufficiently material to form the basis of a finding of error that was jurisdictional in nature, as: there was not a realistic possibility that the Authority’s decision could have been different had it considered whether there was a real chance the Applicant may suffer serious or significant harm during a very short period of detention given the Authority’s findings that there was not a real chance that the Applicant would face such a period of detention or imprisonment. As counsel for the First Respondent observed, the Authority had obtained and considered relevant country information in the DFAT report. Further, it had rejected the Applicant’s claims largely because it had not accepted the factual basis advanced to satisfy the Authority of those claims.
Accordingly, Ground 1 is rejected.
GROUND 2 – LEGAL UNREASONABLENESS
Ground 2 of the amended application reads (omitting underlining):
The Authority fell into jurisdictional error in that it was unreasonable.
Particulars
a)Further or in the alternative to particular (a) to Ground 1, the Authority was unreasonable erred in determining not to consider pursuant to s.473DD of the Act a number of articles submitted to the Authority by the Applicant (Decision and Reasons, [7])
b)The Authority was unreasonable in not accepting:
“that the applicant’s family profile is such that they are currently being monitored by the Sri Lankan authorities”, or
“that the authorities told the applicant’s family in 2017 that he would be arrested at the airport on his return” (Decision and Reasons, [24])
c)Further or in the alternative to Particulars (b) and (c) to Ground 1, the Authority was unreasonable in not finding that the ill-treatment or abuse the applicant may endure even during short detention may be severe enough to amount to serious or significant harm (Decision and Reasons, [42]-[47], [49], [57])
d)Having found that the applicant had two siblings who had been fighting for the LTTE, the Authority was unreasonable in not accepting that the applicant may be perceived as having close family links to the LTTE. (Decision and Reasons, [26], [49])
(sic.)
In summary, by Ground 2 the Applicant contended that it was legally unreasonable for the Authority to have decided that: the four Articles were not “new information”; the profile of the Applicant’s family was such that they were not being monitored by or had recently received threats from the authorities; that it did not accept those authorities had told the Applicant’s family he would be arrested at the airport upon his return; that the treatment which he might face upon return may be severe enough to amount to serious or significant harm, and; that it did not accept the Applicant may be perceived as having close family links to the LTTE.
Applicable principles – legal unreasonableness
The applicable principles were essentially common ground.
The Applicant referred to the consideration of Part 7AA of the Act by the High Court of Australia in Plaintiff M174/2016 where Gageler, Keane and Nettle JJ stated at [21]:
There is no dispute between the parties that the various powers conferred on the Authority by Div 3 of Pt 7AA are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, in the sense explained in Minister for Immigration and Citizenship v Li, with the consequence that an unreasonable failure to exercise such a power can render invalid a purported performance by the Authority of the duty imposed on it by s 473CC to conduct a review and either to affirm or to remit the decision under review.
The Applicant contended that the Authority falls into jurisdictional error if it makes “findings which are illogical in the sense so unreasonably that no reasonable decision maker could so have acted (sic).” It was further contended that the obligation of the Authority to act reasonably extended not only to its final decision but to how it conducted the review (for example, how it exercised its discretionary power under s.473DD whether to consider new information). So much may be accepted.
The Applicant also outlined what it described as the “statutory context for assessing unreasonableness” as important and to that end further submitted (omitting footnotes):
. . . the statutory context is not only the procedural prescriptions of part 7AA of the Act, but the substantive provision by parliament that the Applicant meet the requirements for protection under section 36(2)(a) of the Act (as interpreted by sections 5H and 5J) if he had “a real chance” of suffering persecution, or under section 36(2)(aa) if he had a real risk (which means the same as a “real chance”) of suffering significant harm.
Following Chan v. Minister for Immigration and Ethnic Affairs, a real chance of persecution or a real risk of significant harm is sufficient to establish a claim for protection. “A real chance is one that is not remote, regardless of whether it is less or more than fifty per cent.” A “real chance” thus may be small. It is because the intention of sections 36(2)(a) and 36(2)(aa) is to give protection against serious or significant harm that, even if the Authority has great doubt about whether a person is at risk, Parliament required the Authority to find that the Applicant met the requirements for protection if there was a small but real chance of suffering such harm.
[sic.]
The applicable principles were also addressed in Plaintiff M1/2021 at [25] (plurality), [73]-[81] (Edelman J, diss).
Particular (a) – rejections of the four additional Articles under s.473DD (repetition of Particular (a) in Ground 1)
Particular (a) to Ground 2 was put as further or in the alternative to Particular (a) to Ground 1 and relied on the same argument and reasons submitted.
Each party relied on their submissions in relation to Ground 1, Particular (a). Again, this Ground 2 Particular (a) as it relates to s.473DD(b)(i) was addressed only in oral submissions at the hearing.
Consideration of Particular (a)
It is not controversial that an unreasonable failure to exercise a power pursuant to Division 3 of Part 7AA can render invalid a purported performance by the Authority of the duty imposed on it by s.473CC to conduct a review and either to affirm or to remit the decision under review.
The relevance of both the procedural and substantive context as contended for by the Applicant may be accepted. However, that statutory context includes the general proscription that new information must not be considered by the Authority unless the criteria at s.473DD are met.
The Applicant has failed to point out how those additional four Articles were uniquely responsive to the delegate’s decision such that the legal unreasonableness threshold is met in relation to the Authority’s rejection pursuant to s.473DD(b)(i).
Accepting that the threshold at s.473DD(b)(ii) is low, based on a possibility that were it known the new (credible personal) information may have affected the consideration of the Applicant’s claims, I consider the Authority provided cogent and credible reasons for its decision not to consider the four Articles which the Authority considered were not captured by s.473DD(b)(i) or (ii). The Authority instead relied on new information in the more recent media article (The Guardian publication) comprising such country information under s.473DD(b)(i) in addition to more recent data-based information in the DFAT report.
In my view, the decision not to consider the four Articles was not unreasonable including when proper regard is had to the statutory context as contended on behalf of the Applicant.
Particular (b) –rejection of claims as to family profile and threat of arrest
These matters were not expressly relied upon for the purposes of Ground 1 (other than as to the combined or cumulative effect of certain factors including these, contended for at Particular (c) of Ground 1).
In relation to this Particular to Ground 2, it was said that the Authority had acted in a manner that was legally unreasonable in not accepting two matters of evidence: (1) “that the applicant’s family profile is such that they are currently being monitored by the Sri Lankan authorities”, and; (2) the Applicant said “that the authorities told the applicant’s family in 2017 that he would be arrested at the airport on his return”. As to those matters, attention was drawn to the Reasons [24].
It was contended that the Authority offered “no basis” other than its reference to the DFAT report for its conclusion – contrary to the Applicant’s claims – as to the overall prevalence and monitoring of Tamils being greatly reduced in Sri Lanka and there being a period of 5 years since the Applicant’s departure and the claimed threat of 2017.
The First Respondent opposed this characterisation and contended that the Authority reasonably justified its conclusions and the Applicant had failed to demonstrate that those conclusions were so unreasonable that no decision-maker could have reached that conclusion.
Consideration of Particular (b)
I accept that the Applicant’s claims subject of this Ground 2, Particular (b) were a reasonably central part of the Applicant’s case but do not accept that the Authority’s rejection of these claims was arbitrary, unreasoned or unreasonable, either in the requisite legal sense or otherwise.
The Authority stated in the Reasons at [23]-[25]:
The DFAT report advises that the monitoring and harassment of Tamils in these areas has decreased significantly under the current government:
DFAT assesses that monitoring and harassment of Tamils in day-to-day life has decreased significantly under the Sirisena Government. The Sri Lankan police are now responsible for civil affairs across Sri Lanka. While a sizeable (and largely idle) military presence remains in the north and east, armed forces personnel are generally restricted to their barracks. While some cases of monitoring continue to be reported, such as the military or police observing public gatherings or NGO forums, the overall prevalence of monitoring has greatly reduced. Members of the Tamil community have also described a positive shift in the nature of interactions with authorities; they feel able to question the motives of, or object to, monitoring or observation activities.
I do not accept that the applicant’s family’s profile is such that they are currently being monitored by the Sri Lankan authorities. In particular, I do not accept that the authorities told the applicant’s family in 2017 that he would be arrested at the airport on his return. I consider it implausible that, five years after the applicant’s departure from Sri Lanka, the authorities would suddenly decide to make such a threat. While I note the applicant’s IAA submissions state that there is an army camp located five kilometres from his home, the DFAT report indicates that armed forces personnel are generally restricted to their barracks.
The DFAT report also sets out the categories of persons identified by the UNHCR as needing protection on the basis of imputed LTTE membership:
The most recent UNHCR Eligibility Guidelines for Sri Lanka (December 2012) note that a person’s real or perceived links with the LTTE may give rise to a need for international refugee protection. Although the nature of these links can vary, this may include:
•persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;
•former LTTE combatants or ‘cadres’;
•former LTTE combatants or ‘cadres’ who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, ‘computer branch’ or media (newspaper and radio);
•former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;
•LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;
•persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.
Accurately identifying people according to these categories can be difficult.
As earlier referenced, the scope of the obligation to actively consider a particular claim, integer or evidence will vary according to the circumstances of the particular case: Plaintiff M1/2021 at [26], [77]-[78], [108].
Contrary to the Applicant’s submission, the Authority’s rationale for its conclusion to reject the Applicant’s claims subject of this Particular (b) extended beyond a “reference” in its Reasons at [23] that “the overall prevalence of monitoring has greatly reduced” and a reference to there having been, at that time, an elapse of five years between the departure of the Applicant from Sri Lanka and the claimed threat in 2017.
The Authority accepted that that the Applicant had a sister and brother who were LTTE fighters and killed some 19 and 8 years prior, respectively. It also accepted that the Applicant’s family had, in the past, been questioned or threatened by the CID, army and/or EPDP and that the Applicant had been made to sell papers by the EPDP. The Authority further accepted the Applicant’s evidence that he and members of his family had not been beaten, tortured or detained by the authorities before concluding that the Applicant’s claim that he and members of his family had not been subject to serious harm in the past: Reasons, [22]. The Authority then turned to consider the Applicant’s claim of current monitoring by the authorities and of a 2017 threat to his family of his arrest at the airport on his return. The Authority’s decision reasoned that these claims were implausible having regard to data in the DFAT report: Reasons, [24].
Further, the Authority had an ability but no obligation to seek new information: Minister for Home Affairs vDUA16 (2020) 95 ALJR 54, [27] (DUA16); s.473DC(2). The Applicant has not posed any realistically attainable or probative information that could have been provided in this regard. It may also be noted that, having identified that the (original) interviewer’s demeanour was dismissive and critical, the Authority was satisfied there were exceptional circumstances to justify considering some new information in the Applicant’s submission – including further evidence from the Applicant that was not given in his visa application or interview. The adoption of that course contra-indicates that the Authority adopted a stance in its evaluation of the claims and evidence relied upon by the Applicant that was legally unreasonable.
The Authority was entitled to consider the Applicant’s evidence of these claims and not prefer it to the other materials before it for the objective reasons given. It was not unreasonable for the Authority, on the materials before it, to reject the Applicant’s claims subject of this particular. On the face of the decision and materials before the Court, the conclusion that those claims ought not be accepted was not unreasonable. Nor was it a finding that no reasonable decision maker could have made.
Particular (c) – failure to find that ill-treatment or abuse in detention would be serious or significant harm (repetition of Particulars (b)-(c) in Ground 1)
This Particular was argued in the alternative to Ground 1, Particulars (b) and (c).
The Applicant submitted that the Authority was unreasonable in not finding that the Applicant had a real chance of suffering persecution or significant harm by being beaten or tortured or otherwise ill-treated if held in detention or prison on return, although this was squarely raised by the material relating to abuse of human rights and torture which was before the Authority or in the possession of the Minister’s department (as considered at Ground 1, Particulars (b) and (c)).
The Applicant contended that there was an unreasonable rejection of the claim to protection because the material which the Authority had and either accepted (such as the likelihood of a short period of detention on return) or did not “grapple with” (such as the country information about the mistreatment in the country information including the DFAT report) made it unreasonable for the Authority to discount a real chance of persecution or significant harm in detention on return to Sri Lanka. Further, this was said to be compounded by the refusal of the Authority to consider the news and media reports and the Applicant’s corresponding statement, as considered at Ground 1 particular (a) and Ground 2 particular (a).
The First Respondent adopted the submissions made in relation to Ground 1, Particulars (b).
Consideration of Particular (c)
For the reasons above, I identify nothing that is legally unreasonable in the analysis or conclusions of the Authority in relation to these matters.
The Authority engaged with the Applicant’s claims but did not accept all of his argument. While the Applicant presented material in support of his claims, those claims were not considered by the Authority to be founded in persuasive evidence and the Authority was entitled to reject them. The Authority considered the country information before it which included the fifth article which was not preferred for justified and objective reasons. The Authority’s use of the DFAT report was consistent with its contents – some risk was identified by DFAT but the deficiencies with that data were detailed in DFAT’s explanation of why it concluded a low risk. That the Authority came to a conclusion contrary to that advanced by the Applicant is not an error of jurisdiction.

I do not consider the finding in this regard was unreasonable or that that no reasonable or fair-minded decision maker could have reached the view reached in this case.
Particular (d) – rejection of close links to LTTE
By Particular (d) of Ground 2, the Applicant contended it had been legally unreasonable for the Authority not to have accepted that the Applicant may be perceived as having close links to LTTE. Attention was drawn to the Reasons at [26] and [49].
The Applicant contended that the Authority’s unreasonable failure to accept that the Applicant may be perceived as having close family links to the LTTE was “potentially decisive” for the application. In support, it pointed to:
·the Authority’s findings about the Applicant’s brother and sister being LTTE fighters who were killed during the civil war; and
·the DFAT report which defined the categories of persons identified by UNHCR as needing protection on the basis of “imputed LTTE membership” including “former LTTE combatants or ‘cadres’” and “persons with family links or who are dependent on or otherwise closely related to persons with the above [those] profiles”.
The Applicant argued that the Authority’s reference to the authorities’ knowledge of his siblings’ involvement with the LTTE and of their deaths and the weight placed on the interval of time since their deaths in concluding no link, did not take account of the fact that the Applicant would be investigated afresh on return and such investigation afresh may trigger suspicion.
The First Respondent submitted that the Authority’s findings in support of its conclusion that the Applicant did not have “close family links to the LTTE”, notwithstanding the findings in relation to his two siblings, include that 19 years had elapsed since his sister’s death and 8 years since his brother’s death; and that the fact of their passing would therefore suggest that their LTTE activities and the Applicant’s links to them would no longer be of concern to the Sri Lankan authorities. It was also contended that there was no country information in support of the Applicant’s submission that an investigation afresh would be conducted by the Intelligence Services or in support of the submission that this may be a “trigger for suspicion” or as to why this would render the Authority’s conclusion unreasonable given the Authority’s unchallenged finding that the Applicant was not of interest at the time he left Sri Lanka and his family had been left undisturbed.
Consideration of Particular (d)
I do not find that the Authority’s decision not to seek new information under s.473DC was legally unreasonable, as it did not lack “a rational foundation or an evident or unintelligible justification, or being plainly unjust, capricious, or lacking in common sense.”
The Authority considered these matters in the Reasons at [26] and [49]:
I do not accept that the applicant would be identified as a person with close family links to former LTTE combatants if he returned to Sri Lanka. While the applicant’s brother and sister were former LTTE combatants, they have been dead for 19 years in the case of the sister and eight years in the case of the brother. I have previously found that these deaths are known to the authorities. The fact that the applicant’s brother and sister are deceased suggests that their LTTE activities, and the applicant’s links to them, would no longer be the subject of concern by the Sri Lankan authorities.
I accept that if he returned to Sri Lanka, the applicant would do so as a failed asylum seeker. However, having regard to the country information in the referred material and in particular in the DFAT reports, I am not satisfied there is a real chance the applicant would be harmed by the Sri Lankan authorities for this reason. In particular, I note the information in the DFAT reports that thousands of Tamils have been returned to Sri Lanka since the end of the Sri Lankan civil war, including from Australia, although there have been reported instances of returnees being harmed, the information before me suggests those were people with substantial links to the LTTE or outstanding warrants. The information before me does not suggest the applicant is a person with that kind of profile.
Applying the relevant threshold, it was not unreasonable for the Authority to conclude that the Applicant would not be identified as a person with close family links to former LTTE members. The material before the Authority demonstrated that his siblings’ unfortunate deaths were known to the authorities and the Applicant. Contextually, the Authority recognised that the Applicant’s family had not been subject to harm by the authorities in the past nor in the three-year period between the end of the war in 2009 and the Applicant’s departure from Sri Lanka in 2012: Reasons, [22], [24], [27].
Absent country information to establish that the Applicant may be investigated afresh on his return to Sri Lanka, on the information contained in the DFAT report that was before the Authority and again in context of the applicable threshold, the Authority’s conclusion that the Applicant could not be perceived as having close family links to the LTTE at the time of its decision was not so unreasonable that no reasonable decision maker could have so concluded.
Resolution of Ground 2
On my assessment of the Authority’s decision, it has given cogent and justified explanations for its: refusal to accept the four Articles as “new information”; rejection of the Applicant’s unsubstantiated claims of monitoring and threats; assessment of risk of harm in detention; and its assessment regarding the Applicant’s claim of being perceived to have close family links to the LTTE. Reasonable minds may differ as to the Authority’s approach to these issues however that is not the test. When considered individually or together, in my view these particulars do not demonstrate “unreasonableness” in the sense that no reasonable decision maker could so have acted.
For the above reasons, Ground 2 is rejected.
Having regard to this conclusion, it is not strictly necessary to consider the First Respondent’s contention as to materiality and for present purposes I decline to do so.
GROUND 3 – ERRONEOUS INTERPRETATION OF S.473DD AND S.473DC
Ground 3 of the amended application reads (omitting underlining, marking only the amendment conveyed at the hearing):
The Authority fell into jurisdictional error in that it erred in interpreting or applying the law.
Particulars
(a) Further or in the alternative to Particular (a) to Ground 1 and Particular (a) to ground 2, the Authority erred in interpreting or applying section 473DD(a) and section 473DD(b)(i) or (ii) of the Act in determining not to consider a number of articles submitted to the Authority by the Applicant (Decision and Reasons, [7])
(b)Further or in the alternative to Particular (b) to Ground 2, the Authority erred in not seeking new information under section 473DC relating to claims
“that the applicant’s family profile is such that they are currently being monitored by the Sri Lankan authorities”, and
“that the authorities told the applicant’s family in 2017 that he would be arrested at the airport on return.”
(Decision and Reasons, [24])
As noted, at the hearing on 2 May 2022, a further amendment was proposed in relation to Ground 3, which amendment was not opposed. By that amendment, the reference to paragraph (i) of s.473DD(b) was inserted to Particular (a) of this ground (as marked in the above extract).
Under this Ground 3, the Applicant contended that the Authority fell into jurisdictional error in that it erred in interpreting or applying the law. In summary, by the Particulars, this Ground may be understood to relate to the Authority’s rejection of the four additional Articles and its rejection of the Applicant’s family profile and claimed threats which the Applicant contended bespoke error in the interpretation of ss.473DD and 473DC, respectively, with respect to the consideration and getting of new information.
Applicable principles
The statutory framework and principles relevant to the conduct of the Authority in conducting its fast track review are set out at [35] to [46] above and relevant to the present context include: the power of the Authority to get any documents or information (“new information”) that were not before the First Respondent when it made the decision under s.65 and the Authority considers may be relevant; and the statutory qualification on the Authority’s power under s.473DD to consider any new information.
The applicable principles relevant to s.473DD are outlined in the context of Ground 1 above and need not be repeated here beyond reiterating that, in the exercise of its procedural power at s.473DD, the Authority is not obliged to give comprehensive reasons for its exercise (or non-exercise) of procedural power including under ss.473DD and s.473DC; BVD17, [16].
An important distinction can be made with the provision at s.473DC, which is drafted in permissive terms. That is, the Authority “may” but is not required to get or seek new information: Act s.437DC(2); DUA16, [27]. The power in s.437DC is still subject to the obligation to act within the bounds of legal reasonableness: DUA16, [27]. [consider what guiding principles to insert here, including the permissive nature of the provision as distinct from the prohibitive nature of the s.473DD provision].
The Applicant relied on the following principles in its written submissions at [62]-[63] which were not contested:
The obligation of the Authority to act reasonably extends not only to its final decision, but to how it conducts the review, for example to its exercise of discretions it has under the law (Minister for Immigration and Citizenship v Li), including its determination whether to exercise its powers under section 473DC to get new information, including by interview. This will depend on the particular facts of each individual case: DGZ16 v. Minister for Immigration and Border Protection [2018] FCAFC 12, [70] per Reeves, Robertson and Rangiah JJ; DPI17 v Minister for Home Affairs [2019] FCAFC 43 (15 March 2019), [35]-[54] per Griffiths and Steward JJ.
Unreasonableness indicates a failure by the Authority to discharge its statutory task, and therefore jurisdictional error. In determining whether the Authority was unreasonable, the statutory context is important: Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013, French CJ, Hayne Kiefel, Bell, Gageler JJ.), [67]-[72] per Hayne, Kiefel and Bell JJ.
The First Respondent also sought to rely on the following, uncontested principles in its written submissions at [49]:
Section 473DC(3) does not confer upon the Authority a general power to invite an applicant to an interview to explain his or her claims. The statutory scheme expressly contemplates review decisions being made on the basis of information the significance of which the review applicant is unaware. The Authority is not required to seek new information from an applicant merely or solely because it intends to depart from favourable findings made by a delegate.
(Footnotes omitted)
See: DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551, [70]-[76] (DGZ16); CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641, [56]; ATB17 at [24].
Particular (a) – rejections of the four additional Articles under s.473DD (repetition of Particular (a) in each of Grounds 1 and 2)
This particular (a) to Ground 3 was put further or in the alternative to Particular (a) to Ground 1 and Particular (a) to Ground 2. The Applicant urged the Court that a finding in relation to Particular (a) to Ground 1 did not necessarily translate into a finding for Particular (a) to Grounds 2 or 3 as they are different “categories” of jurisdictional error.
As this Particular related to ss.473DD(a) and s.473DD(b)(ii), the Applicant submitted that the Authority erred in interpreting or applying s.473DD in determining not to consider the Applicant’s four additional Articles submitted to the Authority for the reasons it set out in relation to Ground 1 Particular (a) and Ground 2 Particular (a).
As earlier referenced, the Applicant made an oral application to amend this Particular to include s.473DD(b)(i) and submissions on the point were also made orally and not in writing. The Applicant’s submissions in this regard referred to and repeated the submissions as to Particular (a) of Ground 1 and Particular (a) of Ground 2.
The First Respondent’s written submissions addressed ss.473DD(a) and s.473DD(b)(ii) together with its submissions as to Particular (a) of Grounds 1 and 2.
Similarly, the First Respondent’s oral submissions addressed s.473DD(b)(i) together with its submissions on Ground 1, Particular (a).
Consideration of Particular (a)
I acknowledge the submission that the Court should consider this ground as separate and distinct notwithstanding the substantial overlap with Ground 1, Particular (a). However, the Applicant, in combining his submissions on the point, has failed to highlight any true point of distinction.
I have earlier reasoned as to my conclusions that: there was no failure or failed consideration on the part of the Authority in rejecting the four additional Articles as able to have been provided to the delegate before the delegate’s decision pursuant to s.473DD(b)(i); and in concluding that the four additional Articles were not “credible personal information” within the meaning of s.473DD(b)(ii). Those reasons need not be repeated.
On the approach enunciated by the High Court of Australia in AUS17 at [11], the proper approach is to determine whether either of the limbs to s.473DD(b) are engaged and only in the event of an affirmative engagement may the Authority consider whether it is satisfied there are “exceptional circumstances” to justify its consideration of the “new information”.
In finding that the information could have been before the delegate, and was not “credible personal information”, the Authority did not err in its interpretation of ss.437DD(a) or (b).
Particular (b) – rejection of claims as to family profile and threat of arrest (repetition of Particular (b) in Ground 2)
This Particular (b) to Ground 3 was argued in the alternative to Particular (b) to Ground 2.
The Applicant contended that the Authority erred in not seeking “new information” under s.437DC of the Act in relation to the Applicant’s claims that his family is currently being monitored by the authorities and that his family was threatened in 2017 that the Applicant would be arrested at the airport on his return. And, that it “was incumbent on the Authority not to reject these important claims without taking the step to seek new information, either by interview, or by inviting evidence from witnesses in Sri Lanka.”: Applicant’s written submissions, at [84].
It put forward a proposition, in relation to which at least the principle did not appear to be in contest, that a challenge in relation to an alleged failure by the Authority to seek new information under s.473DC is to be assessed on principles of legal unreasonableness, not through a lens of procedural fairness: Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210. The Applicant also argued that there was “an informational gap” evident to the Authority and the Authority was therefore “unreasonable”:
Further, in ABT17 v Minister for Immigration and Border Protection, the High Court allowed an appeal from a decision of the Authority where it had not sought new information to bridge an “informational gap” relating to the demeanour of the applicant. While the present matter is does not relate to demeanour, there was an informational gap evident to the Authority, being that there was a difficulty not of his making about the Applicant giving evidence to the delegate. This was important for the Authority to note when it was considering rejecting a claim relating to the history of the Applicant or his family. The Authority was therefore unreasonable in not seeking further information about the claim of monitoring or threats. (CB 79; CB 193, [24])
(sic.)
The First Respondent contended that there is no general obligation on the Authority to get new information: citing DUA16 [27]; s.473DC(2) of the Act. Further, that s.473DA(1) “has an exhaustive effect with respect to procedural fairness”. The First Respondent also argued that the Authority is not required to interview an Applicant where credibility is in issue or even where the Authority comes to a different view as to credibility than that of the delegate: ABT17v Minister for Immigration and Border Protection (2020) 269 CLR 439, [24] (ABT17).
Further, the First Respondent submitted that the test for legal unreasonableness is necessarily stringent such that in order to prove that the Authority erred in interpreting or applying the law pursuant to s.473DC “the applicant must show that the only course legally available to the Authority in the circumstances was to exercise its discretion to get new information from the applicant”: First Respondent written submissions, [51]. The First Respondent also relied on DGZ16 at [72] for the proposition that s.473DC(3) does not confer upon the Authority a general power to invite an applicant to an interview to explain his or her claims.
Consideration of Particular (b)
The Authority made findings (in relying on the information in the DFAT report) that the Applicant and his family were not at risk of harm by then currently being monitored by the Sri Lankan authorities, and it did not accept that the Applicant’s family had received a threat from the authorities in 2017 that the Applicant would be arrested at the airport on his return, nor did the Authority accept as plausible the authorities would make such a threat five years after the Applicant’s departure: Reasons, [23]-[24]. It plainly considered the Applicant’s claims subject of this Particular but did not accept the Applicant’s claims of specific threats or risks on an assessment of the facts in the material before it. I identify no error in this regard.
The Authority was not required to seek new information as to the Applicant’s claims, either by interview or by inviting evidence from witnesses in Sri Lanka or otherwise. The Applicant was afforded an opportunity by the Authority to put on new information (subject to the statutory criterion) and, indeed, the Authority did afford some latitude toward the Applicant in receiving some “new information” which it accepted as “evidence” of the Applicant (by way of submission) which was not before the delegate. Specifically, it was upon noting the Applicant’s difficulty in giving evidence to the delegate that the Authority accepted this additional “evidence” of the Applicant by way of “new information” in the submissions under s.473DD(b)(i).
There was also credible country information before the Authority when the decision was made and in my view there was no “informational gap” of the kind in ABT17 which the Authority would reasonably be required to bridge by exercising its power under s.473DC to obtain new information about the contents of the Applicant’s claims.
The Authority’s decision not to seek new information under s.473DC was not, in my view, an error of law or jurisdiction.
Resolution of Ground 3
Accordingly, Ground 3 is rejected.
Having regard to this conclusion, it is not strictly necessary to consider the First Respondent’s contention as to materiality and for present purposes I decline to do so.
CONCLUSION
For the foregoing reasons, the amended application should be dismissed.

I certify that the preceding one hundred and ninety-five (195) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini.
Associate:
Dated: 19 July 2022

File number(s):	MLG 2042 of 2017
Judgment of:	JUDGE MANSINI
Date of judgment:	19 July 2022
Catchwords:	MIGRATION – Application for judicial review of decision of Immigration Assessment Authority – safe haven enterprise (subclass 790) visa – new information – legal unreasonableness – interpretation of s.437DD and s.437DC – application dismissed.
Legislation:	Migration Act 1958 (Cth) ss. 5H, 5J, 36(2)(a), 36(2)(aa), 36(2A), 46A(2), 65, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF, 473EA, 474, 476 Privacy Act1988 (Cth) s.5
Cases cited:	ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 AUS17 v Minister for Immigration & Border Protection (2020) 269 CLR 494 BDF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 401 BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443 BOS17 v Minister for Immigration & Border Protection (2020) 170 ALD 1 BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 Craig v South Australia (1995) 184 CLR 163 CSR16 v Minister for Immigration & Border Protection [2018] FCA 474 DBO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 795 DDK16 v Minister for Immigration and Border Protection [2017] FCAFC 188 DGZ16 Minister for Immigration & Border Protection (2018) 258 FCR 551 DPI17 v Minister for Home Affairs [2019] FCAFC 43 DVO16 v Minister for Immigration and Border Protection [2021] 95 ALJR 375; EJK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 50 Hossain v Minister for Immigration & Border Protection (2018) 264 CLR 123 Minister for Home Affairs v DUA16 (2020) 95 ALJR 54 Minister for Home Affairs v Omar [2019] FCAFC 188, 272 FCR 589 Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 Minister for Immigration and Border Protection v SZMTA (2018) 264 CLR 421 Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Plaintiff M1/2021 v Minister for Home Affairs (2022) ALR 417 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] 264 CLR 217 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Tickner v Chapman (1995) 57 FCR 451
Division:	Division 2 General Federal Law
Number of paragraphs:	195
Date of last submission/s:	2 May 2022
Date of hearing:	2 May 2022
Place:	Melbourne
Counsel for the Applicant:	Mr Krohn of Counsel
Solicitor for the Applicant:	Ambi Associates
Counsel for the First Respondent:	Ms Mills of Counsel
Solicitor for the First Respondent:	Mills Oakley

MLG 2042 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	EGQ17 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS Respondent

ORDER MADE BY:	JUDGE MANSINI
DATE OF ORDER:	19 JULY 2022

IN SUMMARY	[1]
CONTEXT	[5]
The facts	[5]
Authority’s decision	[12]
Procedural history	[25]
THIS APPLICATION FOR JUDICIAL REVIEW	[33]
Statutory framework	[35]
GROUND 1 – FAILURE TO CONSIDER NEW INFORMATION	[47]
Applicable principles	[54]
Particular (a) – rejections of the four Articles under s.473DD	[58]
Particular (b) – absence of “active intellectual engagement”	[92]
Particular (c) – evaluation of real chance of serious harm or significant harm while detained in Sri Lanka	[110]
Resolution of Ground 1	[117]
GROUND 2 – LEGAL UNREASONABLENESS	[124]
Applicable principles – legal unreasonableness	[126]
Particular (a) – rejections of the four additional Articles under s.473DD (repetition of Particular (a) in Ground 1)	[131]
Particular (b) –rejection of claims as to family profile and threat of arrest	[138]
Particular (c) – failure to find that ill-treatment or abuse in detention would be serious or significant harm (repetition of Particulars (b)-(c) in Ground 1)	[149]
Particular (d) – rejection of close links to LTTE	[156]
Resolution of Ground 2	[164]
GROUND 3 – ERRONEOUS INTERPRETATION OF S.473DD AND S.473DC	[167]
Applicable principles	[170]
Particular (a) – rejections of the four additional Articles under s.473DD (repetition of Particular (a) in Ground 1)	[175]
Particular (b) – rejection of claims as to family profile and threat of arrest (repetition of Particular (b) in Ground 2)	[184]
Resolution of Ground 3	[193]
CONCLUSION	[195]