EOS18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 682
•20 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EOS18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 682
File number(s): SYG 2478 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 20 March 2025 Catchwords: MIGRATION – Application for extension of time - where Minister opposed extension from commencement of hearing until filing of written submissions more than 6 years later - Whether Immigration Assessment Authority erred by failing to consider evidence, failing to seek information from applicant and/or failing to invite applicant to interview Legislation: Migration Act 1958 (Cth) ss 473DB, DC, DD Cases cited: AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148
Division: General Federal Law Number of paragraphs: 74 Date of hearing: 20 March 2025 Place: Sydney The Applicant: In person Solicitor for the Respondents: Mr M Vethecan, Clayton Utz ORDERS
SYG 2478 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EOS18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
20 MARCH 2025
THE COURT ORDERS THAT:
1.By consent and pursuant to s 477(2) of the Migration Act 1958 (Cth), the time to make the originating application in this matter (application) is extended up to, and including, 4 September 2018.
2.The application is dismissed.
3.The applicant must pay the first respondent’s costs and disbursements of, and incidental to the application, fixed in the amount of $8,371.30.
4.Pursuant to r 17.02 of the Rules, orders 2 and 3 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal CourtRules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
Before the Court is an application made on 4 September 2018, by which the applicant sought an extension of the time in which to seek judicial review of a decision of the Immigration Assessment Authority (Authority) dated 16 February 2018 affirming a decision of a delegate of the first respondent (delegate) to refuse grant the Applicant a Class XE Subclass 790 Safe Haven Enterprise Visa (visa). That application was made approximately five and a half months out of time.
BACKGROUND
The background to the matter is derived primarily from the written submissions of the first respondent, which unless otherwise indicated, does not appear to be in dispute.
The applicant is a citizen of Sri Lanka. On 6 July 2016, he applied for the visa (CB 34).
On 7 June 2017, the delegate notified the applicant that it had refused to grant the visa (CB 205). On 14 June 2017, the delegate's decision was referred to the Authority for review (CB 228). On 16 February 2018, the Authority affirmed the delegate's decision (CB 301).
The Applicant's Claims
The applicant's claims for protection are outlined the Authority’s decision record, and include that (CB 305 at [16]):
(a)he grew up in an LTTE-controlled orphanage;
(b)the leader of the LTTE, Prabhakaran, often visited the orphanage;
(c)in 2006, the applicant joined the LTTE and underwent training for 4 months before joining the Sea Tigers and transporting weapons, supplies and fighters for the LTTE;
(d)the applicant was involved in battles with the Sri Lankan Navy;
(e)his sister, who was in the LTTE, died in combat in 2008;
(f)on 16 May 2009, the applicant and his family suffered injuries in a bombing;
(g)after the war ended, the applicant was rounded up by the Sri Lankan Army and taken to camps, at which he was questioned about being a member of the LTTE;
(h)the applicant went to a camp in a named place with his wife and child, and later were moved to a camp in Jaffna;
(i)3 months after leaving the Jaffna camp, the Criminal Investigation Department (CID) came to his house and asked him to report the CID office, where he was told he must have been a member of the LTTE, and that if he identified other LTTE members in the village he would be left in peace. The applicant denied the allegations and did not identify anyone;
(j)several days later, the CID detained the applicant for 3 days, and beat him;
(k)the applicant was required to report to the CID on a daily basis;
(l)the applicant and his family relocated to Jaffna, where the CID continued to question and monitor him;
(m)before he left Sri Lanka, the CID's visits to the applicant's home increased; and
(n)the Sri Lankan authorities continue to visit the applicant's wife and ask about him.
The Authority's Decision
The Authority noted that on 16 July 2017, the applicant had provided submissions attaching three documents (CB 302 at [5]), which included a report entitled "Sri Lanka: Country of origin information relating to the targeting of ex-LTTE members/combatants" (2014 Report), and a statutory declaration of the applicant dated 16 July 2017 (July 2017 Statutory Declaration). The applicant also provided an email attaching two photographs (CB 302 at [6]).
For the reasons at [12] and [13] (CB 303 to 304), the Authority did not accept that the new information satisfied the criteria in s 473DD of the Migration Act 1958 (Cth) (Act), and therefore was not able to consider that information.
In relation to the applicant's claims as outlined above, the Authority:
(a)found the "most plausible reason" the applicant amended his claims, namely, to disclose that he was a member of the LTTE prior to February 2017, was to increase his chances of obtaining a visa, and therefore it had "serious doubts" about the applicant's credibility (CB 306 to 307 at [18]). In doing so the Authority made reference to the inconsistencies in the applicant’s statutory declarations;
(b)did not accept that the applicant's detailed knowledge about the LTTE and its operations demonstrated that he was recalling events from his time serving as a member of the Sea Tigers, but rather came from living in an LTTE run orphanage (CB 307 at [19]);
(c)observed that the applicant had given inconsistent evidence about his role in battles with the Sri Lankan Navy and therefore, the Authority had "serious doubts about his credibility". The Authority accordingly did not accept that the applicant joined the LTTE in 2006, undertook training, and served as a member of Sea Tigers (CB 307 to 308 at [20]);
(d)in the context of "inconsistent and far-fetched evidence about his interactions with the CID", did not accept, among other things that (CB 308 to 309 at [23]):
(i)the applicant was ever questioned, detained or beaten by the CID;
(ii)the CID ever visited the applicant's home or workplace;
(iii)the applicant's wife was ever questioned by the CID; and
(iv)the applicant was required to report to the CID on a daily basis.
(e)did not accept the applicant's claim that he would have an actual or imputed political opinion as a member and supporter of the LTTE (CB 309 to 310 at [24] to [26]).
Having regard to the findings above, the Authority was not satisfied that the applicant had a profile which would give rise to any adverse interest upon his return to Sri Lanka, noting that nothing in the country information indicated that attending or living in an LTTE-run orphanage would give rise to an adverse interest by the Sri Lankan authorities, and there was no evidence to indicate the applicant's sister was a high-profile member of the LTTE (CB 311 at [33]).
Further, the Authority was not satisfied that the applicant's profile as a scarred Catholic Tamil fisherman from a Northern Province who attended a LTTE-run orphanage with his sister (who was an LTTE member killed in action) would give rise to any adverse interest in him upon his return to Sri Lanka (CB 312 to 313 at [37]).
Finally, the Authority considered the applicant's illegal departure from Sri Lanka and found the applicant would face routine investigation upon his return but was not at risk of harm (CB 313 at [38]).
PROCEEDINGS IN THIS COURT
As noted above, the proceedings were commenced out of time and the applicant sought to have that time extended. A lengthy explanation was given by the applicant, both in the originating application and a supporting Affidavit, as to the circumstances in which that extension had come to be required. By the Response filed for the first respondent on 13 September 2018, that application for an extension of time was opposed in the following terms (errors in original):
The application was not made to the Court within 35 days of the date of the Administrative Appeals Tribunal’s decision (Tribunal) decision dated 16 February 2018: see s.477(1) of the Migration Act 1958 (Cth) (Act). It is for the applicant to satisfy the Court that it is necessary in the interest of the administration of justice that the time for filing the application be enlarged.
The proceedings first came before the Court on 27 September 2018, on which occasion a Registrar made orders by consent, which included for the applicant to file any amended application by 20 November 2018. The proceedings having initially been docketed to another Judge of this Court (first primary Judge), were next to be listed for a hearing before the first primary Judge at a date, time and place to be fixed. The matter was later placed in the Central Migration Docket. The proceedings remained there, and were next called over on 23 October 2024 before a Registrar by telephone, on which occasion an order was made that the proceedings be listed for hearing of the application for extension of time on a date to be advised.
The proceedings were docketed to me on 21 January 2025, on which date I made orders listing the matter for hearing before me this afternoon and granting the applicant further leave to amend by 27 February 2025. The applicant complied with that order. Like the originating application, the Amended Application appears to have been prepared by somebody who has some legal training. Despite this, and also like the originating application, the footer to the Amended Application says that it was filed on behalf of the applicant, but is otherwise silence as to by whom it was prepared.
The Amended Application sought to amend the explanation for why the application was not made in time, although the explanation does not appear to be substantively different than that which was given in the originating application. The parties were each ordered to file written submissions in advance of the proceedings. Only the first respondent did so. As was the case with the orders of the Registrar made in 2024 and my orders listing the matter for hearing today, it was listed for hearing of the application for an extension of time.
The parties appeared before me this afternoon for hearing. The applicant is unrepresented but was assisted by an interpreter in the Tamil language which the Court had arranged. The applicant was accompanied by two gentlemen who were sitting in the front row of the public gallery directly behind the applicant and the interpreter. The Court explained to the applicant the limitations on its jurisdiction and the matters that it could decide. In the course of seeking to identify the documents and asking the applicant if he had had assistance in preparing the amended application, it was clear that the interpreter was having difficulty communicating with the applicant, not because of any deficiency in her skill (the interpreter being one who is frequently engaged by this Court to interpret in the Tamil language) but rather, because the gentlemen who were sitting behind the Bar table were whispering answers to the applicant in Tamil. One of the gentlemen sought to identify himself as having assisted the applicant in the filing of the Amended Application, although he denied having prepared it. Given that their conduct was interrupting the hearing, I requested that they step outside, and they did. The hearing then continued (with greater ease).
By a Response filed on 13 September 2018, the first respondent opposed time being extended. That position was maintained until 13 March 2025 upon the filing of the first respondent’s written submissions by which he now consents to time being extended, based on the applicant’s explanation, which I was told at hearing today the first respondent accepts. While the period of delay is reasonably lengthy, in circumstances where the first respondent now accepts that the explanations the applicant has given for why the decision of the Authority did not come to his attention sooner, in this case I am satisfied that the explanation given is sufficiently persuasive, by itself, to explain the delay. While I have not yet formed a view about the reasonable prospects of the applicant’s grounds of review, in the present case I am satisfied that it is necessary in the interests of the administration of justice to extend time on the basis of the explanation alone given that the first respondent does not oppose the application on that basis.
It should, however, be noted that it took the first respondent 6.5 years to consent to the extension of time in circumstances where it does not appear anything has changed in that time such that the consent could not have been given much earlier. Given that the Court takes into consideration in the case management and allocation of hearing times depending on the nature of the hearing, it is incumbent upon the first respondent to identify such matters at the earliest available juncture so that Court time and resources can be properly allocated.
GROUNDS OF REVIEW
The substantive grounds of review are as follows (excluding particulars) (errors in original):
1.The Immigration Assessment Authority (hereinafter refers as ‘IAA’) had adopted an inappropriately narrow understanding of the scope of the term “exceptional circumstances” in applying s 473DD of the Migration Act 1958.
2.The applicant contends that the failure to exercise the power, or to consider whether or not to exercise the power, in s473DC(3) to put the applicant on notice that, in contrast to the delegate’s decision, his credibility concerning some of his claims was in issue, was unreasonable such that the IAA committed a jurisdictional error.
3.The IAA accepted some of the applicant's claims but not others. In the circumstances, in relation to the claims which the IAA did not accept, it was necessary for the IAA to take into account of the possibility that that those events claimed by the applicant occurred: see Minister v Rajalingam (1999) 93 FCR 220. The IAA did not take into account this possibility. This was a jurisdictional error.
4.The IAA failed to consider that the DFAT Country information Report Sri Lanka dated 24 January 2017 contained in the said report in relation to the Refugee Convention Claims, complementary Protection Claims, the security situation in the North and East Sri Lanka, incidence of extra-judicial killings, disappearances and abduction for ransom, torture, and prisons conditions that are of general application to people in Sri Lanka and extracts from the said DFAT Report of the relevant paragraphs should have been attached to the invitation to comment by the applicant was crucial before making a decision.
5.The Immigration Assessment Authority (“the IAA”) found that there were inconsistencies and implausibility in parts of the applicant’s claims. In the circumstances, in relation to the claims which the IAA did not accept, it was necessary for the IAA to account the possibility that those events claimed by the applicant occurred: see Minister v Rajalingam (1999) 93 FCR 220. The IAA fell into jurisdictional error in making some of these findings.
6.The applicant states IAA took nearly 8 months in making a decision on credibility-based findings, this delay would have affected the said reviewer Jane Bishop’s ability to fairly analyse the evidence. This was a jurisdictional error.
7.The IAA erred in law in failing to respond to the applicant’s claim to fear of significant harm in Sri Lanka prisons by reason of being imprisoned on pre-trial remand for up to two weeks.
8.The IAA erred in its construction and application of the requirements of section 473DD of the Migration Act 1958 (Cth) with respect to whether the IAA should consider, as new information, the Applicant’s statutory declaration dated 16 July 2017.
Having made the order extending time, each of the grounds was then interpreted to the applicant in turn, and he was given the opportunity to address them.
Ground 1
By Ground 1, the applicant asserts that the Authority adopted an inappropriately narrow understanding of the term "exceptional circumstances" within s 473DD of the Act in relation to three pieces of "new information".
The first of these was the 2014 Report. The Authority found that it did not satisfy the requirements of s 473DD(b) but did not make any finding pursuant to s 473DD(a).
The second was the two photographs which were attached to the applicant's email dated 19 September 2017. The applicant asserts that it was unreasonable for the Authority to not take that material into account so as to compare them against photos of his wife which were taken in 2007.
Thirdly, in relation to a still image of the video which was said to depict the applicant and a particular person.
At hearing today, when asked to address particular 1(a), the applicant said that he did not know why the Authority had not understood what he had told it. The applicant said, “That’s my situation. Why did they not accept it?”[1] The applicant then made some submissions about his feelings of loneliness, in circumstances where he said his wife had left him and he does not have his children with him. While the Court expressed its sympathy for that situation, the applicant’s focus was drawn to addressing what errors he alleges the Authority made. The applicant said he had no more substantive submissions to make about particular 1(a).
[1] Transcript dated 20 March 2025 at T11.24 to 25
When addressing particular 1(b), the true essence of the applicant’s grounds emerged. The applicant said, “Those are the pictures of my wife.”[2] He said he tried to give the pictures to his lawyer, but the lawyer did not do anything with them, so the applicant decided to email them to the Authority himself and alleged:[3]
They didn’t ask for me any further information…or any explanation about the photographs.
[2] Transcript dated 20 March 2025 at T13.16
[3] Transcript dated 20 March 2025 at T13.34 to 36
A similar submission was made in respect of particular 1(c), when the applicant said he was not asked for any further explanations about the videos (understood to be the still image from the video referred to at [24] above).
As the first respondent submitted, overall, the applicant appears to be alleging that he was not given an opportunity to provide further information to the Authority. The applicant seems to allege that procedural fairness required that he be given the opportunity to comment upon, in writing or an interview, various matters about which the Authority decided, and further opportunities to give evidence and potentially further documents it at an interview.
Relevantly, s 473DB of the Act provided as follows:
473DB Immigration Assessment Authority to review decisions on the papers
(1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
(2) Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.
Note: Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).
Further, s 473DC(2) of the Act stated that:
473DC Getting new information
…
(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.
There is simply no basis to the allegation that the applicant was denied procedural fairness by the Authority, because he was not given further opportunities to provide evidence at interview or in any other way.
As to the manner in which the Authority dealt with new information. In respect of the 2014 Report, I agree with the first respondent that the Authority was not required necessarily to address 473DD(a), having regard to AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 in which Kiefel CJ, Gageler, Keane and Gordon JJ held the following at [11]:
If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant.
In respect of the photographs, the first respondent submits that it was for the applicant to satisfy the Authority that there were exceptional circumstances to justify considering them, including by establishing the credibility and probity of the new information. I agree. On the material before the Authority, it was open to find there was no probative value in circumstances where he was not satisfied that the woman in question was the applicant's wife (CB 304 at [15]).
In relation to the still image taken from the video, I accept the first respondent’s submission that this was information provided to the Authority under s 473CB and was not "new information" assessed against s 473DD (CB 309 to 310 at [26]).
Ground 1 is not made out.
Ground 2
By ground 2, the applicant asserts that the Authority acted unreasonably and denied him procedural fairness by not exercising, or considering whether to exercise, its power under
s 473DC(3) of the Act, to put him on notice that his credibility was in issue.
When asked to speak to this ground, the applicant said, “they didn’t give me an opportunity to give more explanation, or…provide more detail about those pictures”.[4] The applicant said that this is what he had been talking about in a previous ground. The Court confirmed with the applicant that his general complaint was that he was not invited to an interview, to which the applicant said “yes”.[5]
[4] Transcript dated 20 March 2025 at T13.32
[5] Transcript dated 20 March 2025 at T14.45 to 47
In respect of the applicant’s complaint, I rely on my findings at [28] to [31] above, made in respect of ground 1, in relation to the obligation of the Authority to seek further information from the applicant, either in writing or at interview. Even if that were not so, I accept the first respondent’s submission that the ground is misconceived. The applicant has not identified any claim which the delegate accepted but the Authority did not. Further, it is well-established that the Authority is not bound by the delegate's findings, and critically, there is no obligation on the Authority to invite further information on the basis that adverse credibility findings are to be made.
Accordingly, the error alleged by ground 2 is not established.
Ground 3
By Ground 3, the applicant contends that the Authority erred by failing to take account of the possibility that claimed events had occurred, in circumstances where the Authority accepted some, but not all, of his claims. When asked about this ground, the applicant said:[6]
I am just telling them what happened, and they did not accept it.
[6] Transcript dated 20 March 2025 at T14.23
As the first respondent correctly points out, both in writing and in oral submissions today, this ground appears to be an attempt at a merits review, which appears to be the other underlying complaint of the applicant, in respect of the Authority’s decision as a whole.
In terms of how the ground is expressed, the particulars to it do not identify any finding by the Authority where it expressed a "real doubt" that its findings were correct. Accordingly, I agree that the Authority was not bound to consider whether its findings might be wrong: see Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
There is no error as alleged by ground 3.
Ground 4
Ground 4 is comprised of two allegations, namely that the Authority:
(a)failed to consider that the 2017 DFAT report contained information regarding "…incidence of extra-judicial killings, disappearances and abduction for ransom, torture, and prison conditions that are of general application to people in Sri Lanka"; and
(b)did not put the 2017 DFAT report to the applicant for comment before making its decision.
When asked to speak to this ground at hearing, the applicant again reiterated submissions to the effect that he was not invited to an interview and was not asked more questions by the Authority or invited to comment. Again, I rely on my findings in respect of ground 1 at [28] and [31] above.
Otherwise, I agree the ground is misconceived. First, in relation to the statement from the 2017 DFAT report at [44(a)] above, the statement in question related to incidents occurring "during the civil conflict" (see [4.1]) which DFAT assessed as having "significantly reduced” since the end of the conflict, and that the incidence of torture had also reduced such that "Sri Lankans face a low risk of mistreatment that can amount to torture" (at [4.20]). Secondly, the Authority found that the applicant was not a person of interest to the Sri Lankan authorities and, accordingly, was not satisfied that the applicant faced a real risk of being arbitrarily deprived of his life, facing the death penalty or being subjected to torture (CB 315 at [48]).
Thirdly, I accept the submission for the first respondent that because the DFAT report was not new information for the purposes of s 473DE(1) of the Act. Even if the report was "new information", it would have come within the scope of the s 473DE(3)(a) exception, being information not specifically about the referred applicant but just about a class of persons of which he is a member.
I am not satisfied there is an error as alleged by ground 4.
Ground 5
By ground 5, the applicant asserts that the Authority was biased, required "too high a standard of proof" of the applicant and erred in assessing his credibility.
When asked to speak to this ground at hearing, the applicant said that he was not able to produce more evidence because he is not able to get more information from his country. The applicant said that the bias was constituted by him not having been given a further chance to provide evidence. Again, I rely on my findings in respect of ground 1 at [28] to [31] above
It is well established that an allegation of actual bias must be "distinctly made and clearly proved, and that there is a heavy onus in demonstrating such a claim”: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J.
Similarly, the test for apprehended bias requires the applicant to demonstrate that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: see QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148 at [37] per Kiefel CJ and Gageler J.
To the extent the applicant asserts the Authority erred in its assessment of his credibility, without more this is an attempt at engaging the Court in impermissible merits review. In the present case, the Authority was entitled to weigh inconsistencies and “implausibilities” (sic) in the applicant's evidence and conclude that there were "serious doubts about the applicant's credibility" (see for example, CB 306 to 310 at [18], [20], [23], [25] and [26]).
The applicant has otherwise not identified any evidence in support of the allegation of bias (whether actual or apprehended), and accordingly the claim must fail.
Ground 6
By ground 6, the applicant asserts that the Authority having taking nearly 8 months to make a decision on credibility-based findings reveals jurisdictional error because "this delay would have affected the [reviewer's] ability to fairly analyse the evidence".
When asked to speak to this ground, the applicant said that before coming up with this decision the Authority ought to have given him time for more explanation. When asked to clarify this in terms of his allegation that the Authority’s decision had taken nearly eight months to make, the applicant explained that given the eight-month period meant here had been ample time to invite the applicant to provide more information. However, having regard to section 473DC(2), the question is not one of sufficient time.
I otherwise agree that the allegation is unsustainable. The Authority made its decision on the papers and predominantly, based on inconsistencies in the applicant's written claims and statements. To the extent the Authority referred and relied upon the applicant's oral evidence given at the SHEV interview, it did not purport to rely on the applicant's demeanour.
The ground is not made out.
Ground 7
By ground 7, the applicant asserts the Authority erred by failing to consider his claim to fear significant harm by being imprisoned on pre-trial remand for up to two weeks.
When asked to address this ground at hearing, the applicant again said that it had not been considered by the Authority, but later conceded that his actual complaint is that the claim ought to have been accepted. This is a bare attempt at merits review.
It is apparent that the Authority did consider the applicant's claim to fear harm as an illegal departee and a failed asylum seeker. The Authority found that the treatment the applicant would face on return would include being processed at the airport, and at most being detained for a short period during investigation (CB 314 at [41]). The Authority also found that such treatment would be the result of the application of a law of general application (so would not constitute persecution) (CB 314 at [41]).
I agree with the first respondent’s submissions that there is no error as alleged by ground 7.
Ground 8
By his final ground, the applicant asserts that the Authority erred in its construction of s 473DD of the Act when considering the July 2017 Statutory Declaration. In particular, the applicant contends that the Authority erred by:
(a)finding he had fabricated reasons to explain inconsistencies in his claims, rather than deciding whether the new claims were simply "capable of being believed"; and
(b)
failing to consider each of the seven new claims in the statutory declaration against
s 473DD of the Act.
When asked to speak to this ground, the applicant again reiterated that it should have been accepted. That is, again, an impermissible attempt at merits review.
As was noted at the outset, the applicant appears to have had assistance with the drafting of these grounds because while he was unable to speak to the ground in any substantive way at hearing, on its face ground 8 appears to allege that the Authority failed to determine whether new information was capable of being believed rather than whether the new information was true in the sense identified in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (CSR16) by Bromberg J.
In CSR16, the Court found that the term “credible” in s 473DD(b)(ii) means “capable of being believed”. His Honour said at [41]:
In my view all that the 'credible' element of the s 473DD(b)(ii) criteria requires is the Authority's satisfaction that the 'new information' is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the 'new information' is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether 'new information' should be received by the Authority so that it may be considered at the deliberative stage.
I agree with the first respondent that, contrary to the applicant’s contention, the Authority did not misconstrue s 473DD(b)(ii). The Authority’s reasons reveal a concern with the applicant's failure to disclose all of his claims prior to the July 2017 Statutory Declaration (CB 303 to 304 at [12] to [13]).
It is also clear that the Authority engaged in the requisite anterior stage assessment of the credibility of the new information and considered whether the new information was "capable of being believed", by evaluating the applicant's purported reasons for not providing the information claims at each stage of the process. Ultimately, the Authority found the information was not capable of being believed on the basis that the claims and reasons given for the late claims had been fabricated. Those findings were open in circumstances where the applicant's claims had developed significantly in the period between 2013 and July 2017, during which period the applicant had legal representation.
Finally, to the extent the applicant claims the Authority ought to have considered each of the 7 new claims individually, that claim ought not succeed. This is because the Authority did, in fact, evaluate whether those claims could have been provided prior to the delegate's decision (CB 303 at [11]), and whether those claims were "credible personal information” which was not previously known, and, had it been known, may have affected the consideration of the referred applicant's claims (CB 304 at [13]).
For the foregoing reasons, I am not satisfied that the error alleged by ground 8 has been established.
CONCLUSION
There being no jurisdictional error demonstrated by the Amended Application or any of the grounds or any of the matters that were raised by the applicant at hearing today, I am satisfied that the decision is a privative clause decision and must be dismissed.
I will so order.
COSTS
Consequent upon the proceedings being dismissed, by his written submissions, the first respondent seeks an order for costs in the scale amount for a proceeding which concludes at a final hearing, which this hearing ultimately became, being the amount of $8,371.30.
When asked if he had anything to say in relation to whether or not costs should follow the event, and if so, in what amount, the applicant said that he had nothing further to say. I am satisfied that costs should follow the event. I am also satisfied that the amount is reasonable.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 15 May 2025
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