FLO17 v Minister for Immigration and Multicultural Affairs - [2025] FedCFamC2G 380

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FLO17 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 380

File number: MLG 2725 of 2017

Judgment of: JUDGE FORBES

Date of judgment: 20 March 2025

Catchwords: MIGRATION – protection visa – judicial review of decision of Immigration Assessment Authority – whether finding as to receiving country open – whether the applicant’s claim of statelessness clearly articulated or emerges from materials – whether statement given to authority was new information – where statement provided outside time allowed – whether Authority acted unreasonably in not accepting statement or not seeking further information – whether Authority considered all relevant information – whether all claims for protection considered individually and cumulatively – whether the Authority misconstrued or misapplied the statutory tests for refugee and complementary protection – where asserted errors invite merits review – no jurisdictional error established

Legislation: Migration Act 1958 (Cth) ss 5, 5H, 5J, 36(2), 5H, 5J, 473DC, 473DD, 473FB

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

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503

BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365

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

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

CIW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1133

CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496

CUZ17 v Minister for Immigration & Anor [2019] FCCA 3074

ELA18 v Minister for Home Affairs [2019] FCA 1482

Guclukol v Minister for Home Affairs (2020) 279 FCR 611

Jayaweera v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 395

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Border Protection v EEI17 (2018) 261 FCR 461

Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431

Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541

Minister for Immigration and Citizenship v Singh (2014) 231 FCR 437

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1

SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109

SZULW v Minister for Immigration and Border Protection [2018] FCA 1335

Division: Division 2 General Federal Law

Number of paragraphs: 153

Date of last submission/s: 13 March 2024

Dates of hearing: 18 December 2023; 13 March 2024

Place: Melbourne

Counsel for the Applicant: Mr Krohn; Vrachnas and Co

Counsel for the Respondents: Mr Lessing; Australian Government Solicitor
ORDERS

MLG 2725 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
FLO17

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE FORBES

DATE OF ORDER:

20 MARCH 2025

THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The Amended Application for judicial review of the decision of the Immigration Assessment Authority dated 9 November 2017 is dismissed.
3.The applicant pay the First Respondent’s costs fixed in the sum of $8,371.30.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION

On 9 November 2017 the Immigration Assessment Authority (Authority) affirmed a decision of a delegate of the Minister to refuse to grant the applicant a Safe Haven Enterprise visa (SHEV). The applicant seeks judicial review of the Authority’s decision.
On 31 January 2024 the applicant filed a Further Amended Application alleging three grounds of judicial error (identified as Grounds 1, 3 and 4 – Ground 2 of the original application having been abandoned). The applicant seeks orders that the Authority’s decision be quashed and remitted for redetermination.
The applicant in this matter claims to be a Tamil Hindu born in Sri Lanka. The applicant says his family moved to India as refugees when he was 2 or 3 years of age and that he lived in India for most of his life until he arrived in Australia by boat in April 2013.
In assessing the applicant’s claims for protection, the Authority considered Sri Lanka to be the receiving country. The applicant challenges the correctness of that finding. He says that the Authority failed to consider a clearly articulated claim that he was stateless.
In addition to the “statelessness” ground, the applicant seeks to impugn the Authority’s decision on the basis that it failed to consider a further statement made by the applicant after the delegate’s decision, failed to acknowledge the risk of harm to the applicant by reason of his uncle’s role with the Liberation Tigers of Tamil Eelam (LTTE) and failed to properly consider the risk the applicant might be subjected to torture or other serious harm in the event of detention. The applicant alleges that the Authority failed to properly consider each of his claims for protection, misunderstood or misconstrued the law and made findings which are so illogical that no reasonable decision-maker could have so acted.
For the reasons set out below, I am not persuaded that the Authority fell into error. Accordingly, the application for judicial review must be dismissed.
BACKGROUND
In his arrival interview on 16 July 2013, the applicant informed the then Department of Immigration and Citizenship (Department) that his country of birth is Sri Lanka and he has Sri Lankan citizenship[1]. He said he did not claim any other citizenship. He also said his parents are Sri Lankan citizens[2]. The applicant said that from 1990 to 2013 he lived in India in a refugee camp[3]. He said that his birth certificate was lost when moving to India and he doesn’t have a passport[4]. When asked to provide the reasons why he originally left Sri Lanka for India, he said that in 1990 his father was taken for questioning and his father feared he would be killed after that. Subsequently, his family travelled illegally to India by boat[5].
[1] Court book (CB) 12
[2] CB 14-15
[3] CB 12
[4] CB 13
[5] CB 17
On 9 May 2016, the Department invited the applicant to apply for a SHEV.
On 19 July 2016, the applicant made his visa application with the assistance of a registered migration agent. In the application the applicant recorded his citizenship at birth as “Sri Lankan” and his current citizenship as “not known”. He described his parents as having Sri Lankan citizenship. In response to Question 19 of the application form, “If you are stateless, how, when and why did you become stateless?”, the applicant answered[6]:
“I WAS BORN IN SRI LANKA AND MOVED TO INDIA WITH MY PARENTS AS A REFUGEE. MY CURRENT STATUS IS NOT KNOWN AS I’M NOT A CITIZEN OF INDIA OR SRI LANKA.”
[6] CB 45
In the visa application, the applicant again stated that he does not have a passport[7]. He said that he has never had, or used, any other passport or travel document[8].
[7] CB 52
[8] CB 53
In providing reasons for claiming protection, the applicant stated that he is seeking protection in Australia so that he does not have to return to Sri Lanka, that he does not know about his current citizenship of any country, and that[9]:
“IF WE RETURN TO SRI LANKA WE DO NOT KNOW WHERE TO GO OR WHAT TO DO IN SRI LANKA, WE WILL BE KILLED BY THE SRI LANKAN AUTHORITIES. IM SCARED OF MY LIFE THERE. I HAVE NEVER BEEN THERE SINCE I LEFT THE COUNTRY AS A CHILD FROM TRINCOMALE DISTRICT. MY PARENTS ALL LIVING IN REFUGEE CAMPS IN INDIA AND WE WERE THE VICTIMS OF SRI LANKAN CIVIL WAR.”
He added:
“I DO NOT KNOW WHERE I CAN LIVE IN SRI LANKA, I HAVE NEVER BEEN” THERE SINCE I MOVED TO INDIA WITH MY PARENTS. IM STATLESS [sic] AND WILL BE KILLED IN SRI LANKA SINCE I’M A TAMIL.”[10]
[9] CB 63
[10] CB 65
To his application the applicant attached a Sri Lankan refugee identity card which had been issued by the Government of Tamil Nadu (India)[11].
[11] CB 69-70
The applicant was invited by the Department to attend a SHEV interview to be held on 20 December 2016.
On 2 December 2016, the applicant’s representative emailed the Department a document regarding the applicant’s protection claims (in Tamil and translated into English) and a translated copy of the Sri Lankan refugee identity card[12]. The applicant again stated that he was born in Trincomalee, Sri Lanka, that he and his family fled to India in 1990 and lived in a refugee camp, and that he fears returning to Sri Lanka. The translated Sri Lankan refugee identity card does not state whether the “head of family” (the applicant’s father) is stateless or a citizen of Sri Lanka[13].
[12] CB 112
[13] CB 121
The applicant’s interview was postponed until 23 January 2017, and then to 14 February 2017.
Around a week after the interview the applicant’s representative sent the Department an email with further country information about Sri Lanka. This additional information comprised three online articles[14].
[14] CB 133
On 28 April 2017, the applicant’s visa was refused by a delegate of the Minister. In the “Applicant Details” section of the delegate’s decision record, it states:
“Country of birth: Sri Lanka
Country of citizenship: Sri Lanka
Receiving country: Sri Lanka”
The delegate was satisfied that the applicant was a Tamil Hindu born in 1988 in Trincomalee District, Sri Lanka and his “identity is as he claimed”[15]. The delegate found it plausible that:
•The younger brother of the Applicant’s father was a member of the LTTE.
•The Applicant’s father was taken for questioning about the whereabouts of his younger brother during 1990. The Authorities tortured and beat [the father], damaging two of his front teeth. The authorities decided not to kill him because they thought if they tortured him enough he would give them details about the location of his younger brother, when he could not bear the pain any longer.
•The Applicant’s father feared that the Sri Lankan authorities may take him the next time and kill him.
•The Applicant’s family fled from Sri Lanka to Tamil Nadu in India illegally by boat in approximately 1990.
•[The applicant] fears he will be killed because he holds no status in Sri Lanka, including holding no passport or National Identity Card.
•His family saw people who went back to Sri Lanka were either killed or went missing.
•He does not know where he could live in Sri Lanka, and he has never lived there since he moved to India with his parents.
[15] CB 150
Ultimately, the delegate was not satisfied that the applicant was someone in respect of whom Australia has protection obligations under s 36(2)(a), or s 36(2)(aa) of the Act. This conclusion was based on the delegate’s finding that the applicant would not face a real chance of persecution on account of his profile as (1) a Tamil Hindu; (2) the close relative of an ex-LTTE cadre in Sri Lanka; or (3) a failed asylum seeker returning from Australia.
Referral to the Immigration Assessment Authority
On 1 May 2017, the delegate’s decision was referred to the Authority for review. The applicant was notified of the referral via email.
Relevantly, in a practice direction which was attached to the email, the applicant was informed that he may provide a written submission on why he disagrees with the decision of the Department or any claim or matter that he presented to the Department that was overlooked[16]. The practice direction required that any submission should be provided to the Department within 21 days of the applicant’s case being referred to the Authority. The practice direction also stated that the Authority can only consider new information (that was not before the Department) in very limited circumstances as per s 473DD of the Act, and that any new information must also be provided within 21 days of the date of the referral to the Authority.
[16] CB 168
On 6 June 2017, after the expiry of the 21 day time limit, the applicant’s representative wrote to the Authority requesting an extension of time to provide submissions. On 7 June 2017, the Authority informed the representative that the request for an extension had not been granted, but that “a submission received before the decision is made may be considered”.
On 8 June 2017, the representative submitted a statement of the applicant and another article about the risks faced by Tamil asylum seekers returning to Sri Lanka. The statement reiterated many of the same claims previously raised by the applicant, being that he left Sri Lanka for India in 1990 and lived in a refugee camp, that he knows nothing about Sri Lanka, has no relatives living there, and that he has heard of other refugees being subject to torture and imprisonment upon return to Sri Lanka.
Decision of the Immigration Assessment Authority
On 9 November 2017, the Authority affirmed the decision of the delegate to refuse the applicant’s protection visa.
Regarding the applicant’s identity, the Authority stated at [7] of its decision:
“The applicant’s only form of identification is a Sri Lankan Refugee Identity Card issued by the Indian government on 18 December 2012. It contains a photograph of the applicant and his mother, father and brother and lists his age as 24, his parents’ birthplace as Thiriyai and their arrival date as 2 August 1990. I accept the applicant’s identity as stated based on this document and his account of his family history in the SHEV interview.”
Regarding the submission provided by the applicant’s representative on 8 June 2017, the Authority decided not to accept the statement or the attached news article as “new information”.
The Authority accepted the applicant’s identity as a Sri Lankan refugee who had lived for most of his life in Tamil Nadu, India. The Authority also accepted the applicant’s claims that:
(a)his uncle may have joined the LTTE in some capacity during the civil war;
(b)his father was detained, questioned and tortured by the SLA in 1990;
(c)his father fled by boat to Tamil Nadu in India with his wife and children and has remained there living in a refugee camp;
(d)his difficult life in the refugee camp in India was a factor in the applicant’s decision to travel to Australia.
The Authority then considered the potential challenges faced by the applicant returning to Sri Lanka regarding his links to the LTTE and his Tamil ethnicity. The Authority found that, given the passage of time since the applicant’s father was detained and given the absence of information about the nature of the uncle’s role within the LTTE or whether he was still being pursued, the applicant did not face a real risk of detainment, torture or death because of his associations with his father or uncle[17].
[17] Authority’s Reasons at [18]-[19]
The Authority then considered country information provided by the applicant, but noted that the information related to Tamils with particular profiles the applicant did not share[18].
[18] Authority’s Reasons at [21]-[25]
The Authority went on to consider country information from the Department of Foreign Affairs and Trade (DFAT) and the UK Home Office and concluded that the level of persecution of Tamils in the Northern Province of Sri Lanka had decreased significantly under the current government and that being Tamil in itself does not warrant international protection[19].
[19] Authority’s Reasons at [26]
The Authority referred to country information which indicated that the applicant would be able to obtain a record of his birth in Sri Lanka which would then allow him to apply for a National Identity Card. Moreover, the Authority found that the applicant would be able to move freely within Sri Lanka to seek out family or employment. Whilst the Authority acknowledged that it might be challenging for the applicant to return to Sri Lanka and create a new life, it did not consider that the challenges would involve systemic or discriminatory conduct[20].
[20] Authority’s Reasons at [28]
The Authority then considered the applicant’s status as a person who had departed illegally from Sri Lanka and claimed asylum in Australia. The Authority considered that upon return to Sri Lanka as a failed asylum seeker the applicant might be questioned, charged, fingerprinted and photographed, taken to Court and possibly held in custody for a short period while waiting for a Magistrate. The Authority accepted that the applicant may face poor conditions while in custody. However, the Authority held that none of this would amount to serious harm, and that there is not a real chance the applicant would face a custodial sentence[21].
[21] Authority’s Reasons at [31]-[33]
Considered both individually and cumulatively, the Authority did not find that the applicant’s claims supported a well-founded fear of persecution within the meaning of s 5J of the Act.
JUDICIAL REVIEW
On 13 December 2017, the applicant filed an application for judicial review of the Authority’s decision in this Court.
The matter came before me on 18 December 2023. Counsel for the applicant indicated that they sought to amend their grounds and add an additional ground. I allowed the request and adjourned the matter until 13 March 2024.
On 13 March 2024, Mr Krohn of counsel appeared for the applicant and Mr Lessing of counsel appeared for the Minister. Prior to the review hearing, both parties filed written outlines of submissions and the Minister filed a Court Book. The applicant also sought to rely on an affidavit of the applicant affirmed on 19 January 2024, which was not opposed.
The grounds of review pressed by the applicant (omitting particulars) are as follows:
1. The Authority fell into jurisdictional error in that it failed to consider a relevant consideration.
…
3. The Authority fell into jurisdictional error in that it erred in interpreting or applying the law.
…
4. The Authority fell into jurisdictional error in that it was legally unreasonable.
…
There was some overlap across the grounds with various findings of the Authority falling under different species of jurisdictional error. Distilled, the applicant sought to impugn the decision of the Authority on the following bases:
(a)the Authority failed to consider an articulated claim made by the applicant that he was stateless (the stateless claim);
(b)as a consequence of the stateless claim, the Authority failed to consider India as the applicant’s country of former habitual residence and wrongly assessed the applicant’s claims for protection on the basis that Sri Lanka was the receiving country;
(c)the Authority did not consider the applicant’s statement submitted to the Authority on 8 June 2017;
(d)the Authority did not consider all the information before it relating to torture and abuse of human rights (including information in the 2017 DFAT Report), and did not consider the potential torture and abuse the applicant might face if detained for any period in Sri Lanka;
(e)the Authority failed to cumulatively assess the applicant’s claims;
(f)the Authority failed to seek new information from the applicant regarding the nature of the applicant’s uncle’s role within the LTTE or any indication that his uncle is still being pursued by the Sri Lankan authorities.

My discussion of the applicant’s grounds of review has been structured according to the findings or reasoning of the Authority sought to be impugned. Before turning to the grounds, I set out the legal principles against which the allegations of error are to be assessed.
Legal principles
Part 7AA fast track review process
The decision of the Authority was made according to the fast track review process prescribed in Part 7AA of the Act. That statutory scheme contextualises the Authority’s statutory task and frames the Court’s consideration of alleged error.
As observed by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [17]:
“[T]he Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority [...] is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.”
The practical role of the Authority under Part 7AA was helpfully explained by Judge Kelly in CUZ17 v Minister for Immigration & Anor [2019] FCCA 3074 at [24]-[25] where his Honour stated:
“[24] In contrast with a review under Pt 5 or Pt 7 of the Act, the fast track scheme provided by Pt 7AA is a mechanism of limited merits review. Division 3 of Part 7AA variously: provides an exhaustive statement of the natural justice hearing rule respecting a review conducted by the Authority; requires that the Authority should ordinarily conduct its review on the papers; provides for the exceptional, and strictly circumscribed, circumstances in which new information or documents may be sought or employed; and authorises and prescribes the manner in which the Authority may conduct an interview of the applicant or otherwise obtain further information.
[25] In general, the Authority must conduct its review without accepting or requesting new or additional information and without interviewing the applicant. The Authority may, but is under no duty to, get any documents or information that was not before the delegate. Section 473DD proscribes the Authority from considering any new information unless the conditions provided by that section are satisfied.” (citations omitted)
Failure to consider
Under the fast-track review scheme, the Authority has a duty to conduct its review on the referred material. The Authority must consider each necessary and relevant consideration[22] and each integer of the claims[23].
[22] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J, at [19]
[23] SZSZW v Minister for Immigration and Border Protection [2015] FCA 562
In Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (Plaintiff M1/2021) the plurality (Kiefel CJ, Keane, Gordon and Steward JJ) said at [24]-[27] (omitting footnotes):
“[24]Consistent with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive authority is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
[25]It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. 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. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
[26]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.
[27]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.”
It is uncontroversial that on judicial review the applicant assumes the burden of persuading the Court to draw the inference of a failure to deal with a claim or consider a matter the Tribunal was obliged to consider, or make the finding of jurisdictional error, for which he or she contends[24].
[24]SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25]; SZGUR 241 CLR 594 at [67]
The parties accept that the Authority is only required to consider claims that were clearly articulated or clearly emerge on the materials. It is well accepted that there is no clear distinction in each case between claims and evidence. Any distinction between claims and evidence provides a tool of analysis but it is not the discrimen itself.
In determining whether a claim “clearly emerges”, the following principles were articulated in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at [18]:
(a) such a finding is not to be made lightly;
(b) the fact that a claim might be said to arise from materials is not enough;
(c) to clearly emerge from the materials, the claim must be based on “established facts” […]
(d) while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”; and
(e)understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.
The claims made by the applicant must be considered in light of the basis upon which the application was made, “not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process”[25].
[25] Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, at [1]
Where a matter is not referred to in a decision-maker’s reasons, there are two obvious hypotheses. One is that the omission of the matter from the reasons indicates that the decision-maker did not consider the matter at all. The other is that the decision-maker did consider the matter but did not consider it material. It is important to recognise that there is a distinction between these possibilities[26] and that the absence of a reference to material in the reasons does not of itself give rise to one inference or the other.
[26] Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (SZGUR) at [31]; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (MZYTS) at [51]
The question of whether the Authority has discharged its statutory task is to be answered primarily through the lens of the Authority’s reasons. In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [49] the Court said:
“The court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made. Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present - and what is absent - from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf 206 CLR 323 at [10], [44], [69].”
A decision-maker can, quite properly, consider a matter by thinking about the matter (including the appropriate weight to attribute to such a matter) without making any findings[27]. The fact that a matter is not mentioned in a statement of reasons does not mean that it was not considered[28]. Where it is apparent that a decision-maker has read a document, the inference that he or she has overlooked or not properly considered a particular part is difficult to draw.[29]
[27] See Guclukol v Minister for Home Affairs (2020) 279 FCR 611 (Guclukol) at [41]-[53] and [55] (Katzmann, O’Callaghan and Derrington JJ)
[28] Minister for Immigration and Border Protection v EEI17 (2018) 261 FCR 461, at [49] (the Court)
[29] See SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [27] (Heerey, Branson and Emmett JJ); SZGUR at [73] (Gummow J, with whom Heydon and Crennan JJ agreed at [91] and [92])
Moreover, the reasons of the Authority must be read fairly and as a whole and not “with an eye keenly attuned to the perception of error”[30]. Whether the Tribunal is obliged to consider particular evidence will depend upon the cogency of that material and the place of that material in the assessment of the applicants’ claims. The Tribunal’s consideration of such evidence need only reflect the length, clarity and degree of relevance of the material put before it. The Tribunal is not required to record generally “what it did” in conducting its review, nor is it required to describe every step taken or refer to every piece of evidence in conducting is review.
[30] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ)
Legal unreasonableness and irrationality
In ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 (ABT17) at [3] the plurality said in respect of a Part 7AA fast track review:
“The duty of the Authority to review a referred decision is imposed on the implied condition that the duty must be performed within the bounds of reasonableness, and the powers of the Authority to get and consider new information are likewise conferred on the implied condition that those powers must be considered and where appropriate exercised within the bounds of reasonableness.”
What is considered unreasonable must be assessed according to the statutory scheme[31]. The Minister submits that demonstrating legal unreasonableness in the context of Part 7AA carries a “demanding standard”. As the Federal Court said in BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 (BCQ16) at [71]:
“Part 7AA modifies (by restricting) the common law principles of procedural fairness. The analysis of what might be an unreasonable exercise of, or failure to exercise, a discretionary power contained in Part 7AA must proceed against the statutory context, which includes that modification. Whilst the legislature is taken to have intended that a discretionary power will be exercised reasonably (Li at [63], per Hayne, Kiefel and Bell JJ; [88], per Gageler J), that which is reasonable is informed by the subject matter, scope and purpose of the legislation under which it is conferred. Part 7AA requires the Authority to review a decision and to conduct that review on the basis of the “review material” and, subject to the statutory exceptions contained in Part 7AA, without obtaining “new information” or affording the referred applicant a hearing. The reasonableness of an asserted failure to consider a discretionary power to disclose material to the referred applicant, and the reasonableness of the exercise of the discretion itself, must be assessed against that statutory scheme.”
[31] CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [45] – [46] (Thawley J)
The relationship between the conclusion or outcome reached by the Authority and the reasoning process revealed by reasons to reach it is one that cannot be rigidly set. The Court’s task is one of characterisation: the Authority’s decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in the sense of lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious or lacking in commonsense, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of power[32].
[32] See Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11]-[13]
Whether the decision in a particular case meets the required standard of reasonableness (and is therefore within power) must be decided by the Court on review based upon a consideration of the facts of the particular case[33]. A finding of legal unreasonableness will invariably be fact dependent. It requires careful evaluation of the evidence within the context of the relevant statutory scheme.
[33] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [61], [70] (Gageler J), [84] (Nettle and Gordon JJ) and [140]-[141] (Edelman J); Minister for Immigration and Citizenship v Singh (2014) 231 FCR 437 at [42]
An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making a decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.[34] Factual findings must be rationally made and based on probative material and logical grounds.[35]
[34] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45] (Perram, Murphy and Lee JJ)
[35] CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [40]‑[55]
While factual findings and associated reasoning in administrative decisions are subject to review for jurisdictional error on the grounds of irrationality, true irrationality must be shown[36].
[36] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 at [9] per Gleeson CJ and at [34]-[37] per McHugh and Gummow JJ; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [119] and [135] per Crennan and Bell JJ
To demonstrate jurisdictional error on the basis that the decision maker engaged in a process of reasoning that was illogical, irrational and not based on findings or inferences of fact supported by logical grounds, it is not sufficient to show that the question of fact was one in respect of which reasonable minds might differ[37].
The stateless claim
(Ground 1, particulars (a) and (b), Ground 3)

Applicant’s submissions
[37] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Failure to consider
The applicant submits that it was critical for the Authority to properly identify the receiving country for the purpose of assessing the applicant’s claims for protection. The applicant contends that the Authority failed to do so.
The applicant argues that he made a clearly articulated claim of statelessness. The applicant says that this claim squarely arises on the materials[38], and was “skated past” by the delegate. The applicant contends that the Authority then simply assumed that he was a citizen of Sri Lanka, without considering or making its own finding on the question of the applicant’s current nationality or citizenship.
[38] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE)
The applicant submits that the following evidence gives rise to his clearly articulated claim:
(a)in his SHEV application he explicitly states at Question 19 that his citizenship is unknown and he is not a citizen of India or Sri Lanka;
(b)in his SHEV application he states at Question 17 and 18 that his citizenship at birth was Sri Lankan but his current citizenship is “not known”;
(c)at Question 42 he states that his brother and sister’s citizenship is “not known”;
(d)at Question 89 he states that “I also do not know about my current citizenship of any country”;
(e)at Question 94 he states that “I hold no status in Sri Lanka, including passport or NIC cards, I was born to a refugee”;
(f)at Question 96 he says “I’m statless [sic]”; and
(g)his Sri Lanka Refugees Identity Card does not state whether the “Head of Family” is a citizen of Sri Lanka or stateless.
The applicant also claimed to not have a passport. The holding of a passport would normally be strong evidence of nationality[39] but in the applicant’s case no such evidence was available.
[39] Jayaweera v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 395
The applicant submits that, had the Authority considered the statelessness issue and exercised its discretion to seek clarification or new information from him pursuant to s 473DC, the applicant would have given further information to support his claim. Had the Authority then decided that the applicant was stateless, it would have considered the applicant’s claims by reference to his former country of habitual residence, which would be India, not Sri Lanka.
The applicant says that the Authority must direct itself to the correct country of reference for the purpose of assessing the applicant’s claims for protection. Accordingly, the question of nationality was so fundamental to the statutory task that it could not be ignored. It was submitted that if there is a gap in information which goes to whether the Authority can safely determine the protection claim then is incumbent on the Authority to resolve that gap – if the Authority had any doubts, it had an obligation to request further information from the applicant.
The applicant submits that by failing to request further information from the applicant, the Authority failed to discharge a basic statutory duty, being to determine whether the applicant was stateless or maybe stateless. The applicant contends that the Authority therefore fell into jurisdictional error, and that error was material.
Error of law
Further or in the alternative to the above, the applicant says that the Authority constructively failed to exercise its jurisdiction because it did not properly consider and determine whether:
“(i) it should apply section 5H(1)(a) of the Act rather than section 5H(1)(b) in determining if the Applicant was a refugee and owed protection under section 36(2)(a) of the Act, and
(ii) it should apply section 5(a) rather than section 5(b) of the definition of “receiving country” in determining if the Applicant was a refugee and owed protection under section 36(2)(aa) of the Act.”

Section 5H of the Act states:
Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality–is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality–is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Section 5 of the Act defines “receiving country” as:
“(a) a country of which the non‑citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non‑citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non‑citizen to the country.”
In essence, the applicant submits that the Authority was required to consider whether he was a citizen of Sri Lanka, or whether he was stateless, in order to determine which subsection of s 5 and s 5H to apply. If the Authority had any doubt about the issue, it should have sought more information under s 473DC to clarify the issue. The applicant says he would have then given clear evidence that he was stateless and the Authority would have assessed him against India as his country of former habitual residence pursuant to s 5H(1)(b) and s 5(b).
Therefore, says the applicant, the Authority did not determine a relevant jurisdictional fact and applied the wrong criteria.
Minister’s submissions
Failure to consider
The Minister submits that, given the way that the applicant presented his case over time, any claim of statelessness supposedly made by the applicant was not clearly articulated, nor was it a claim which clearly arose on the materials.
The Minister refers to the fact that, during the entry interview, the applicant stated that his citizenship is Sri Lankan, and his parents’ citizenship is Sri Lankan. There was an interpreter present at this interview, and the record of interview was signed by the applicant.
The Minister accepts that in the applicant’s visa application he initially indicated that his citizenship was unknown. The Minister also accepts that there is limited exploration of the applicant’s nationality in the Authority’s reasons. However, on the same visa application the applicant described his citizenship at birth as being Sri Lankan, his current citizenship as “unknown”, and his parents as having Sri Lankan citizenship.
In the “visa application summary” provided to the applicant to acknowledge receipt of his SHEV visa application, and prior to his interview with the delegate, the applicant’s citizenship and country of birth was listed as “Sri Lanka”. The letter from the Department states that:
“Please check the attached Visa Application Summary and contact us if any of the details are incorrect or change at any time during the processing of your application.”
There is no evidence that the applicant ever advised the Department that the summary was incorrect.
The 2 December 2016 email from the applicant’s representative to the Department attaches the applicant’s translated statement of claim and a translated copy of the applicant’s Sri Lankan refugee identity card. The Minister notes that the applicant’s statement of protection claims largely relates to his fears of returning to Sri Lanka, not India. Further, the country information provided to the Department on 21 February 2017 all related to Sri Lanka.
The Minister submits that the delegate’s decision, delivered after interviewing the applicant, contains no evidence that the applicant contested that he was a national of Sri Lanka. The delegate notes that the applicant’s claims included that he “is a Sri Lankan national who was born in Trincomalee, Sri Lanka during 1988”[40].One would have thought that if he contested his nationality and claimed statelessness and a right to be assessed against India as his place of habitual residence, he or his representatives would have unambiguously said so.
[40] CB 150
After the matter was referred to the Authority, the applicant was notified of the limited circumstances in which the Authority could consider new information. The applicant was informed of the requirement that that he could provide new information to the Authority if that information could not have been provided to the Department before it made the decision to refuse the applicant’s protection visa, or was credible personal information that, had it been known to the Department, may have affected the Department’s decision. Albeit outside time, the applicant’s representative then provided further information relating to Sri Lanka, and another statement from the applicant about why he cannot return to Sri Lanka. Nowhere in this submission did the applicant contend that the delegate was wrong about his nationality, or that the delegate had failed to consider a claim of statelessness.
The Minister submits that, rather than inferring that the Authority failed to consider the issue of the applicant’s nationality, including his statelessness, it should be inferred that “it is not the subject of detailed reasons because it was not ultimately a significant issue in the course of review, particularly when regard is had to how the applicant presented his claims over time”[41].
[41] Minister’s Outline of Submissions at [41]
Error of law
The Minister asserts that the Authority was aware of the bifurcating effect of s 5H(1) because it laid out the law correctly at [13] of its reasons:
“13. Section 5H(1) of the Act provides that a person is a refugee if, in a case where the person has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.”
The Minister submits that based on the material before it, it was completely unsurprising that it proceeded to assess the applicant’s claims on the basis that he was a Sri Lankan national. The Minister says that if the applicant took issue with the delegate’s findings that he is a Sri Lankan national, it was open to him to provide evidence to the Authority, but he did not do so.
The Minister rejects the applicant’s assertion that the Authority failed to exercise jurisdiction by not engaging in a de novo review of the delegate’s decision. The Minister says it was open on the evidence for the Authority to find that the applicant was a Sri Lankan national. Part 7AA is a mechanism which provides for limited review. The review does not require the Authority to search for claims which the applicant has not made or which do not clearly arise on the material before the Authority.
Regarding the assertion that the Authority failed to consider or determine a “relevant jurisdictional fact” (that the applicant was stateless), the Minister says this is misguided. In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164 at [32]:
“… the IAA’s exercise of the decision-making power depends on the existence of a jurisdictional fact, namely the reaching of a state of satisfaction or non-satisfaction by the IAA as to the refugee and complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Migration Act at the time that the decision was made… The Migration Act has a binary structure in this respect; if a non‑citizen can make a valid application for a visa, the Minister must decide either to grant (s 65(1)(a)) or refuse to grant (s 65(1)(b)) that application according to whether the Minister is satisfied that the requirements stated within the Act or regulations are met. The various factual matters which the decision-maker must address in reaching a state of satisfaction, including whether the visa applicant has met relevant visa criteria, are not themselves jurisdictional facts simply because those facts necessarily need to be addressed in reaching the state of satisfaction leading to the grant or refusal of the visa.” [citations omitted] [emphasis added]
In this case, the Minister submits that the question of the applicant’s nationality for the purposes of s 5 or s 5H is not a jurisdictional fact. While it is conceded that, “a material error in reaching a finding of fact as to an applicant’s nationality can amount to a jurisdictional error”[42], the Minister submits there was no such error in the present case.
[42] Minister’s Outline of Submissions at [64]
Consideration
In assessing the criteria for a protection visa, it is necessary to establish the person’s ‘country of reference’ – usually the country in which they claim to fear harm. It is not a jurisdictional fact, but an error in determining this important issue can lead to jurisdictional error.
For persons who have a nationality, the “receiving country” is the country of nationality. Whether a person is a national of a particular country is to be determined solely by reference to the law of the relevant country.
For persons without a nationality, the receiving country is the country of their former habitual residence, with the added (but not unimportant) qualification that it does not matter whether return to that country would be possible.
The Authority, in conducting its de novo review of the delegate’s decision, was required to consider each of the claims for protection expressly articulated by the applicant and their component integers as well as claims that are not expressly articulated but which clearly emerged on the materials before the Authority[43].
[43] NABE at [55], [68]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [18]
Conversely, the Authority was not required to consider any claim which was not expressly articulated and which did not clearly emerge on the materials. The fact that a claim might be said to arise from materials is not enough[44].
[44] NABE at [68]
Understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time. Unless there are reasons to think otherwise, the Authority was entitled to assume that claims expressly articulated by an applicant and his representative as to his fears of persecution were those on which the applicant relied[45].
[45] ELA18 v Minister for Home Affairs [2019] FCA 1482 at [32]; SZULW v Minister for Immigration and Border Protection [2018] FCA 1335 at [80]-[81]
Prior to being interviewed by the delegate, the applicant had re-produced the ID Card identifying him as a Sri Lankan refugee. His statement of protection claims, provided to the delegate, proceeded on identifying a fear of harm if returned to Sri Lanka (not India). After interviewing the applicant, the delegate noted the applicant’s claims as including that “The Applicant is a Sri Lankan national who was born in Trincomalee District, Sri Lanka during 1988”.
At [7] of its reasons the Authority accepted the applicant’s account which amounted to a finding that he was a Sri Lankan national and that the receiving country would be Sri Lanka. I agree with the Minister that it was open to the Authority to proceed on this basis, having regard to the way in which the application was pressed.
I do not accept that the applicant’s claim to be stateless was clearly articulated, or that it clearly arose from the materials before the delegate – it is not the way he prosecuted his case. Whilst the applicant did at times mention that his citizenship was unknown, his submissions and all his claims for protection were made by reference to Sri Lanka. He had several opportunities to correct information provided to him by the Department and the Authority, which identified his citizenship as Sri Lankan but he failed to do so. He was represented the whole time. Given the importance the applicant now ascribes to the issue of citizenship, the delegate’s finding that he was a national of Sri Lanka should have been at the front and centre of his submissions to the Authority.
The asserted claim of statelessness does not meet the principles described in AYY17 – it is not enough that the claim “might” arise from the materials. Here the applicant was represented at all times and, given the way the claims were prosecuted consistently over time (all country information and submissions relate to Sri Lanka) a claim of statelessness did not emerge and was not a matter overlooked by the Authority.
In my view the Authority properly considered the claims which were advanced before it. If statelessness was seriously contended by the applicant his case would have been presented differently. True it is that the issue of nationality was not the subject of detailed reasons. However, in my view the proper inference is that the matter of nationality was not the subject of detailed reasons because it was never presented, nor did it emerge as an issue in the course of the proceedings.
Furthermore, it cannot be presumed that the Authority did not consider statelessness as a claim. The Authority was conscious and alert to its statutory task. It can readily be inferred from [13] of its reasons, that the Authority was aware of the requirement to turn its mind to the issue of nationality in determining how to consider clams for protection. The fact that the Authority does not explore the possibility of statelessness in its reasons does not mean that it was not considered. It is quite conceivable that it was considered but taken no further having regard to the way the applicant advanced his claims.
The alleged failure to consider a claim of statelessness does not reveal jurisdictional error.
The applicant’s statement provided 8 June 2017
(Ground 1, particulars (c), (d) and (e), Ground 3, particulars (a) and (b) and Ground 4)

Applicant’s submissions
The Applicant submits that the Authority erred in failing to consider a statement provided to the Authority on 8 June 2017. The Authority said at [5] that:
“I have decided to exercise my discretion not to accept the information as it does not comply with the ‘Practice Direction for Applicants, Representatives and Authorised Recipients’ given under section 473FB of the Act. The submission was provided after 21 days of the case being referred to the IAA… The undated statement contained in the submission appears to be a restatement of claims already before the delegate and does not add anything further. The applicant had the option to provide both the news article and the statement to the delegate prior to the decision. I have therefore exercised my discretion under section 473FB not to accept the information.”
Pursuant to s 473FB of the Act, the President of the Authority may, in writing, issue directions as to the operations of the Authority and the conduct of reviews by the Authority, as long as such directions are not inconsistent with the Act or the Regulations. The Authority must as far as is practicable comply with the directions.
Section 473FB(5) of the Act provides that the Authority is not required to accept new information or documents from a person if the person fails to comply with a relevant direction that applies to the person. The relevant practice direction in this case provided that any new information must be provided within 21 days of referral to the Authority[46]. An equal time limit applied to submissions[47].
[46] CB 170, [28]
[47] CB 169, [21]
The applicant submits that because of the Authority’s concession that the 8 June 2017 statement “appears to be a restatement of claims… and does not add anything further”, the information cannot have been “new information” within the meaning of s 473DC and 473DD of the Act. The applicant submits that the Authority was therefore required to consider it.
The applicant contends, in the alternative, that the statement was a submission, rather than new information, and therefore the Authority was required to consider it.
Further, and in the alternative to the above, the applicant argues if the 8 June 2017 statement was “new information”, it was legally unreasonable for the Authority to rely on s 473FB(3) as a reason for refusing to consider it. Section 473FB(3) provides that while the Authority should comply with the practice direction as far as practicable, non-compliance with any direction does not mean that the Authority’s decision on a review is an invalid decision. Accordingly, the applicant contends that even if the statement was provided outside the time provided in the directions, it should nonetheless have been considered under s 473DC because it was credible, personal information and, had it been known, it may have affected the consideration of the applicant’s claims, particularly as they related to the torture and imprisonment of Sri Lankan returnees. The essence of this submission is that the statement was of such probative value that it was unreasonable for the Authority not to have gone around the Direction.
Minister’s submissions
The Minister submits that there can be no jurisdictional error where the Authority acted according to s 473FB(5) by declining to accept the new information which had not been provided within 21 days of referral to the Authority. The applicant had not complied with the practice direction and the Authority was required to do so. The Minister contends that the occasion for determining whether the new information satisfied s 473DD did not arise.
The Minister refers to and contests the applicant’s submissions that the 8 June 2017 statement did not constitute “new information” because it was in essence a restatement of the applicant’s claims. The definition of “new information” includes “documents” that were not before the delegate. The 8 June 2017 submission was not a document which was before the delegate and must therefore have been “new information” for the purposes of ss 473DC, 473FB(5) and the practice direction. The Minister submits that the Authority’s observation that the statement did not add anything further to the applicant’s claims is not inconsistent with it being “new information” for the purposes of s 473DC.
The Minister also contests the applicant’s contention that the statement was a submission, instead of “new information”. In any case, the practice direction providing for a 21 day time limit also applied to submissions.
Finally, the Minister asserts that it was not unreasonable for the Authority to decline to accept the statement under s 473FB(5). There was a clear basis for the Authority’s refusal to accept the statement, in circumstances where the represented applicant did not comply with the practice direction. In any event, even if error was established, the error was not material given the Authority’s conclusion that the submission added nothing further to the applicant’s already stated claims.
Consideration
I accept the Minster’s submissions in relation to the 8 June 2017 statement.
First, the statement was on any view “new information” within the meaning of s 473DC because it was not before the delegate. As such the statement was amenable to the practice direction and the statutory requirement for the Authority to comply as far as is practicable. The requirement to comply must be read in light of and in conformity with the Part 7AA scheme for fast-track reviews which involves a review on the papers and the exclusion, save in limited circumstances, of new information.
The provision of the 8 June 2017 statement outside the 21 day time limit was a clear breach of the Practice Direction and it was open to the Authority not to accept it for that reason. The Authority had the discretion to consider the statement and indicated that it might be prepared to do so, but it had no obligation to do so. The fact that the furnished statement added nothing to already stated claims for protection is a logically rational reason for not taking it into account.

Secondly, I reject the applicant’s submission that it was legally unreasonable for the Authority to have failed to consider the 8 June 2017 statement.
The decision not to accept the new information was not legally unreasonable when considered in the context of the legislative scheme. Demonstrating legal unreasonableness in the context of Part 7AA carries a “demanding standard”.[48] Section 473FB(5) forms an integral part of Part 7AA and the exclusive statement of procedural fairness therein. The provision must be given work to do. The requirement in s 473FB that the Authority as far as practicable comply with the practice direction and the discretion not to accept new information from a person who does not comply with the direction sets the bar very high – unattainably high for the applicant in this case.
[48] BCQ16 at [71]
Furthermore, I agree with the Minister that the applicant faces a materiality hurdle. Even if the applicant was able to establish that the Authority erred by not receiving the 8 June 2017 statement, I agree with the Authority’s observation that it really added nothing to the claims made by the applicant.
The DFAT Report relating to human rights abuses (Ground 1, particulars (f) and (g))
Applicant’s submissions
The applicant submits that the Authority did not consider all the information before it relating to torture and abuse of human rights in Sri Lanka (including information in the 2017 DFAT Report) and did not consider the potential torture and abuse the applicant might face if detained, even for a short period, as an illegal returnee.
The Authority refers to the 2017 DFAT Report at several points throughout its decision[49]. At [30] – [34], the Authority references the country information before it, citing the 2017 DFAT Report:
“30. Having regard to the country information in the referred material, I am not satisfied there is a real chance the applicant would be suffer any harm by the Sri Lankan authorities because of his return as a failed asylum seeker […] As stated previously, the information before me indicates those were people suspected of having substantial links to the LTTE, those suspected of committing serious crimes or those who participating in anti-government protests while out of the country. I am not satisfied the applicant is a person with that kind of profile.”
[49] For example, Authority’s Reasons at [17], [18], [25] - [28], [30]-[34]
The Authority then goes on to traverse country information which suggests that people returning to Sri Lanka who departed illegally are likely questioned and charged by the police. They are then taken into custody prior to appearing before a Magistrate. The Authority went on to find:
“33. […] I am not satisfied that the applicant faces a real chance of a custodial sentence. As noted above, the applicant may be detained for a short period whilst waiting to be brought before a magistrate and may be subjected to poor prison conditions during such detention, but I am not satisfied that such detention, or the prison conditions to which the applicant may be subject do not of themselves constitute serious harm as defined by the Act. […]
34. Additionally, the evidence before me indicates that the provisions and penalties of the I&EA are laws of general application that apply to all Sri Lankans equally when returning the country after departing illegally. […]”
The applicant says that this consideration by the Authority falls short of the consideration required by Plaintiff M1/2021. He says that on a fair reading of the reasons, the references to selective parts of the 2017 DFAT Report leads to an inference that there were other parts of the report that were overlooked or not considered. For example, in the report it is noted that:
“4.13[…] verification of the evidence presented in these reports is complicated by the fact that many allegations are made anonymously, often to third parties, including by individuals who are outside Sri Lanka, and in some cases individuals who are in the process of seeking asylum. However, DFAT assesses that there have been credible reports of torture carried out by Sri Lankan military and intelligence forces during the civil conflict and in its immediate aftermath.”
The applicant submits that the Authority failed to acknowledge the limitations of the DFAT report in its reasons.
Further, the “thrust” of the 2017 DFAT report, according to the applicant, was that “even after the end of the war and change of government in 2015 there was an entrenched and pervasive culture of torture and abuse by the police and other authorities, especially of persons in custody, even for minor offences”[50]. The applicant submits that if the Authority had engaged with this material, its assessment of risk of harm to the applicant may have been different.
[50] Applicant’s Outline of Submissions at [36]
Minister’s submissions
The Minister points to the several instances in the Authority’s reasons which engage with the 2017 DFAT Report[51]. The Minister says that it can be inferred from this alone that the report was properly considered as part of the review.
[51] For example, Authority’s Reasons at [17], [18], [25] - [28], [30]-[34]
The Authority also acknowledged that DFAT is “aware of reported instances of torture carried out by police and assesses that torture in Sri Lanka, perpetrated by […] police forces, is not presently systemic or state sponsored”[52]. The Authority then went on to note that “DFAT reports that thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia. Although there have been reported instances of returnees being harmed, DFAT has assessed that the risk of torture or mistreatment is low and continues to reduce”[53].
[52] Authority’s Reasons at [25]
[53] Authority’s Reasons at [30]
The Minister submits that the Authority actively engaged with and utilised the DFAT Report to reach its conclusion that the applicant will not face a real chance of harm during any brief period of detention he may be subject to.
The Minister says that at its highest the applicant’s complaint is one of a failure of the Authority to footnote specific paragraphs of the DFAT report, which does not constitute error.
Consideration
Reasons are not to be viewed with an eye attuned to error. Reasons must be read fairly and as a whole.
On a fair reading of its reasons, I am satisfied that the Authority did consider the 2017 DFAT Report. The fact that some parts of the report are cited and others are not, does not give rise to the inference the applicant contends for. The more obvious inference is that the Authority considered the report and made reference to the evidence if considered relevant and probative of the issues it was required to determine.
Failure to consider the claims cumulatively (Ground 1, particular (h))
Applicant’s submissions
The applicant submits that, when read as a whole, the Authority did not cumulatively consider the applicant’s claims.
At [35] of the reasons the Authority states:
“35. After having regard to the applicant’s claims individually and cumulatively, I find that he does not have a well-founded fear of persecution within the meaning of s.5J.” [emphasis added]
The applicant says the Authority’s conclusion at [35] does not expressly deal with the possibility that the risks to the applicant “from his relationship to his uncle who was in the LTTE, and his father having been beaten because that uncle (the applicant’s father’s brother), and the long standing culture of breach of human rights, and the attention to him as a returning asylum seeker and illegal emigrant”[54] might be significant.
[54] Applicant’s Outline of Submissions at [39]
Minister’s submissions
The Minister submits that [35] of the reasons shows that the Authority did assess the applicant’s claims individually and cumulatively. This particular should therefore be rejected.
Consideration
The mere statement by the Authority that it had considered the applicant’s claims cumulatively is of course not determinative of the issue. Whether the Authority did in fact do so, is a matter of fact to be drawn from the decision and the pathway of reasoning.
I am quite satisfied, on a fair reading, without an eye unduly attuned to error, that the applicant’s claims were considered cumulatively. The applicant’s claims were properly identified in the reasons. The weight to be given to the claims and the consideration of evidence against them was a matter for the Authority. Some claims are deserving of greater interrogation and reasoning than others. I reject this ground of error.
Lack of information regarding uncle’s involvement with the LTTE
(Ground 3, particular (c))

Applicant’s submissions
One of the applicant’s claims before the Authority was that his uncle (his father’s younger brother) was a member of the LTTE[55]. At [18] of the Authority’s reasons it noted:
“Circumstances have changed significantly since the events of 1990. The war ended in 2009 and 27 years have passed since the applicant’s father was detained and questioned about his brother. The applicant, who was a baby when he left Sri Lanka, is now an adult. DFAT assesses that close relatives of high-profile former LTTE members who remain wanted by Sri Lankan authorities may be subject to monitoring because of the fear of a resurgence of the LTTE. Given the passage of time and the applicant’s absence from Sri Lanka, I am not satisfied the applicant would necessarily be considered to be close to his uncle. Furthermore, there is a clear absence of information about the nature of the applicant’s uncle role with the LTTE, or any indication that his uncle is still being pursued by Sri Lankan authorities.” [emphasis added]
[55] CB 190
The applicant submits that the Authority should have sought new information about the applicant’s uncle’s links to the LTTE by exercising its discretion under s 473DC of the Act. The applicant submits that the Authority’s discretion was enlivened because this issue “was potentially critical to the review”.
Section 473DC of the Act provides:
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.
The applicant submits that the Authority’s failure to get new information about the applicant’s uncle was an error of law and/or legally unreasonable. The applicant argues that the absence of information about the uncle made it impossible for the Authority to exclude a real chance of relevant harm. A real chance can be a small chance and by failing to seek further information the applicant says that the Authority failed to properly assess the foundation of the applicant’s well-founded fear.
Minister’s submissions
The Minister says that this is not a situation where there was an information gap arising from the review material before the Authority[56]. The Authority simply observed a deficiency in the evidence provided by the applicant, who was represented, to the delegate in support of his claims[57]. It was not unreasonable for the Authority to make that observation and not seek further information.
[56] ABT17 at [13] - [17] (Kiefel CJ, Bell, Gageler and Keane JJ)
[57] CIW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1133 at [49] – [56] (Rofe J)
The Minister also notes that the Authority is under no obligation to give reasons for a refusal to exercise its discretion to obtain new information[58]. The fact that a matter is not mentioned does not mean that it was not considered[59].
[58] BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 at [40] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ)
[59] Minister for Immigration and Border Protection v EEI17 [2018] FCAFC 166 at [49]
Consideration
As I have stated previously, reasonableness must be assessed within the context of the relevant statutory scheme. In CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [45] – [46] the court observed:
“[45] The question of legal unreasonableness is to be approached through the lens of the specific statutory scheme and not through the lens of the principles of natural justice unaffected by statute. As noted earlier, Division 3 of Part 7AA (with ss 473GA and 473GB) contains its own exhaustive statement of the natural justice hearing rule: s 473DA(1).
[46]The discretion in s 473DC(1) and (3) must be read with s 473DC(2) which provides that the Authority “does not have a duty to get, request or accept, any new information” whether requested to do so or in any other circumstance. Whilst this does not deny that the Authority must act reasonably in exercising or considering the exercise of its discretionary powers, what is reasonable must be assessed according to the statutory scheme…” [citations omitted]
The Authority’s observation about an “absence of information about the nature of the uncle’s roles” with the LTTE or any indication that uncle is still being pursued by Sri Lankan authorities does not point to a misapplication or misinterpretation of the relevant refugee criteria. Rather, the uncle’s whereabouts, status in relation to the LTTE and past involvement were observed as deficiencies in the applicant’s evidence.
There was no obvious informational gap. The applicant’s submissions fail to acknowledge the limited nature of the review undertaken by the Authority under Part 7AA. The Authority was not required to run the applicant’s case for him or to fill gaps in his evidence by making inquiries of its own.
Error in interpreting or applying the terms “well-founded fear of persecution”, real chance” or real risk”
(Ground 3, particulars, (d) and (e) and Ground 4)

Applicant’s submissions
Referring again to the Authority’s observation that there was “a clear absence of information about the nature of the applicants uncle’s role with the LTTE, or any indication that his uncle is still being pursued by Sri Lankan authorities”, the applicant submits that the Authority erred in interpreting or applying the terms “well-founded fear of persecution” in section 5H(1)(a) of the Act, “real chance” in section 5J(1)(b) of the Act and “real risk” of significant harm within the meaning of section 36(2)(aa).
Further, the Applicant contends that in circumstances where there was:
(a)evidence of incidence of torture in Sri Lanka;
(b)evidence of an entrenched culture of torture in Sri Lanka;
(c)evidence that DFAT cannot verify information and does not monitor people after their return to Sri Lanka;
(d)findings by the authority which accepted the applicant’s history of his uncle being in the LTTE and his father having been detained, questioned and tortured;
(e)a clear absence of information about the nature of the uncle’s role with the LTTE or any indication that the uncle was still being pursued by Sri Lankan authorities; and
(f)evidence that the applicant would be subject to the interrogation and possible brief detention if he returned to Sri Lanka
the Authority’s conclusion that the applicant was not a person owed protection under the refugee criteria in section 36(2)(a) and the complementary protection criteria in section 36(2)(aa) revealed an error in its interpretation and application of the terms “well-founded fear of persecution”, “real chance” and “real risk” as described above.
In addition to his allegation that the Authority misconstrued or misapplied these key statutory criteria in determining whether he was owed refugee or complementary protection, the applicant also contends that the Authority was legally unreasonable in making findings about the risks of harm which were not open to it. The applicant submits that the obligation of the Authority to act reasonably extends to its consideration of the substantive requirements for protection under s 36(2)(a) of the Act if he had “a real chance” of suffering persecution or under s 36(2)(aa) if he had a real risk (which means the same as a “real chance”) of suffering significant harm. The applicant submits that the scheme of limited review under Part 7AA of the Act does not diminish the Authority’s obligation to act reasonably in assessing whether the applicant meets these requirements for protection.
Minister submissions
The Minister submits that the suite of errors alleged in the paragraphs above amount to a broad assertion that the Authority’s findings that the applicant did not satisfy ss 36(2)(a) and 36(2)(aa) were not open to it on the evidence. In that regard, the Minister submits that the applicant is inviting the court to engage in an impermissible merits review of the Authority’s ultimate findings.
Consideration
The Authority stated the relevant tests correctly in its decision[60]. Neither the written nor oral submissions advanced by the applicant persuade me that there was any misconstruction or misapplication of the criteria for refugee or complementary protection under the Act.
[60] See for example, CB 192, [13] – [14]; CB 195, [26]; CB 196, [34]; CB 197, [37] – [38]
As I have previously found, the Authority did consider the applicant’s claims regarding an “entrenched and pervasive culture of torture and abuse by the police and other authorities, especially of persons in custody, even for minor offences”. I am satisfied that the authority read and considered the 2017 DFAT Report, as evidenced by the many footnotes in the decision which refer to its content. By reference to that report and other evidence on the review material, the Authority considered the circumstances of returnees to Sri Lanka in the context of assessing the risk of harm to the applicant as an illegal departee. The Authority assessed the risk of harm should he be detained and was not satisfied that he would face a real chance of harm during the brief time he might be held.
In my view, fairly read, the Authority adopted an orthodox approach in its consideration of whether the applicant faced a real chance of persecution or a real risk of significant harm if returned to Sri Lanka as the receiving country.
I agree with the Minister that the applicant’s effort to impugn the Authority’s decision on the grounds of misconstruction or misapplication of the statutory tests, by reference to the evidence that was or was not before the Authority, is really aimed at opening the Authority’s decision for merits review. The applicant has not established misconstruction or misapplication of the criteria for protection. Rather, the applicant takes issue and disagrees with the conclusions reached by the Authority on the review material.
As previously mentioned, the Court’s task is one of characterisation: the Authority’s decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in the sense of lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious or lacking in commonsense, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of power.
For the Court to find irrationality or unreasonableness to the necessary extent to find jurisdictional error, the court would need to conclude that the Authority’s findings in relation to the applicant’s protection claims were not open to it. It may be that minds differ and that another Authority, differently constituted, might weigh and assess evidence differently and more favourably to the applicant. But the legal principles regarding unreasonableness establish a high threshold for error which the applicant has failed to demonstrate in this case.
DISPOSITION

For the reasons set out in the foregoing paragraphs, the Grounds advanced by the applicant have failed to demonstrate that the Authority’s decision was affected by jurisdictional error.
The application for judicial review must be dismissed. I will hear the parties on the question of costs.

I certify that the preceding one hundred and fifty-three (153) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes.
Associate:
Dated: 20 March 2025

File number:	MLG 2725 of 2017
Judgment of:	JUDGE FORBES
Date of judgment:	20 March 2025
Catchwords:	MIGRATION – protection visa – judicial review of decision of Immigration Assessment Authority – whether finding as to receiving country open – whether the applicant’s claim of statelessness clearly articulated or emerges from materials – whether statement given to authority was new information – where statement provided outside time allowed – whether Authority acted unreasonably in not accepting statement or not seeking further information – whether Authority considered all relevant information – whether all claims for protection considered individually and cumulatively – whether the Authority misconstrued or misapplied the statutory tests for refugee and complementary protection – where asserted errors invite merits review – no jurisdictional error established
Legislation:	Migration Act 1958 (Cth) ss 5, 5H, 5J, 36(2), 5H, 5J, 473DC, 473DD, 473FB
Cases cited:	ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 CIW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1133 CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 CUZ17 v Minister for Immigration & Anor [2019] FCCA 3074 ELA18 v Minister for Home Affairs [2019] FCA 1482 Guclukol v Minister for Home Affairs (2020) 279 FCR 611 Jayaweera v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 395 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Border Protection v EEI17 (2018) 261 FCR 461 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 Minister for Immigration and Citizenship v Singh (2014) 231 FCR 437 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 SZULW v Minister for Immigration and Border Protection [2018] FCA 1335
Division:	Division 2 General Federal Law
Number of paragraphs:	153
Date of last submission/s:	13 March 2024
Dates of hearing:	18 December 2023; 13 March 2024
Place:	Melbourne
Counsel for the Applicant:	Mr Krohn; Vrachnas and Co
Counsel for the Respondents:	Mr Lessing; Australian Government Solicitor

MLG 2725 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	FLO17 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

ORDER MADE BY:	JUDGE FORBES
DATE OF ORDER:	20 MARCH 2025