FQF17 v Minister for Immigration and Citizenship - [2025] FedCFamC2G 1431

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FQF17 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1431

File number: MLG 2790 of 2017

Judgment of: JUDGE FORBES

Date of judgment: 3 September 2025

Catchwords: MIGRATION – protection visa – judicial review of decision of Immigration Assessment Authority to refuse visa – where new DFAT country information published before Authority’s decision – whether Authority bound by Ministerial Direction no. 56 to consider most recent country information – whether unreasonable not to consider new information – whether Authority failed to properly assess whether documents were credible personal information – whether Authority failed to consider whether exceptional circumstances existed – whether Authority misunderstood or misinterpreted the law – whether logically probative basis existed for finding document was fabricated – jurisdictional error found – matter to be remitted

Legislation: Migration Act 1958 (Cth) ss 36(2), 473CC, 473DA, 473DB, 473DC, 473DD, 473GA, 473GB, 499

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

AMT15 v Minister for Immigration and Border Protection [2018] FCA 366

Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1

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

AYC18 v Minister for Immigration (No 2) [2020] FCCA 1637

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

BDI17 v Minister for Immigration and Border Protection (2018) 339 FLR 147; [2018] FCCA 2162

BHX18 v Minister for Home Affairs [2018] FCCA 3498

BHX18 v Minister for Home Affairs [2019] FCA 705

BJB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1683

BND18 v Minister for Immigration [2019] FCCA 2218

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

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

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

CVZ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 481

DEZ16 v Minister for Immigration [2018] FCCA 1317

DNU20 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 627

DTH17 v Minister for Immigration [2018] FCCA 729

DTP18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 56

DXP18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 774

DYI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 612

DYK16 v Minister for Immigration and Border Protection (2018) 267 FCR 69

Goodwin v Phillips (1908) 7 CLR 1

Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802

Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235; [2017] FCAFC 184

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610

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

Minister for Immigration and Citizenship v Le (2007) 164 FCR 151; [2007] FCA 1318

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16

Division: Division 2 General Federal Law

Number of paragraphs: 187

Date of last submission/s: 29 August 2024

Date of hearing: 29 August 2024

Place: Melbourne

Counsel for the Applicant: Mr Krohn

Solicitor for the Applicant: AUM Lawyers

Solicitor for the First Respondent: Mr Anastasi; Clayton Utz

The Second Respondent: Submitting appearance, save as to costs
ORDERS

MLG 2790 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
FQF17

Applicant

AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE FORBES

DATE OF ORDER:

3 SEPTEMBER 2025

THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Citizenship”.
2.A writ of certiorari issue quashing the decision of the Immigration Assessment Authority dated 23 November 2017 (IAA reference: IAA17/01871).
3.A writ of mandamus issue be directed to the Administrative Review Tribunal requiring it to reconsider and determine the matter according to law.
4.The First Respondent pay the Applicant’s costs fixed in the amount 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 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION

The applicant is a Sri Lankan national of Tamil ethnicity who first arrived in Australia on 13 April 2013 as an unauthorised maritime arrival. The applicant sought refugee protection under s 36(2)(a) of the Migration Act 1958 (Cth) (the Act) or complementary protection under s 36(2)(aa) claiming that if he was returned to Sri Lanka he would be subjected to arrest, harm or persecution by reason of his Tamil ethnicity, area of residency and imputed association with the Liberation Tigers of Tamil Eelam (LTTE).
On 23 January 2017 the applicant was refused a Safe Haven Enterprise Visa (SHEV) by a delegate of the first respondent (Minister). On 23 November 2017, the Immigration Assessment Authority (Authority or IAA) affirmed the delegate’s decision.
By a further amended application dated 29 August 2024, the applicant seeks judicial review of the Authority’s decision.
In his amended application the applicant seeks to impugn the Authority’s decision on multiple grounds, alleging various species of jurisdictional error including that the Authority failed to consider relevant evidence (including new information), misinterpreted or misapplied the law or made findings which were illogical or legally unreasonable.
For the reasons set out below, I have concluded that the decision of the Authority was affected by jurisdictional error. The decision of the Authority should be quashed and a writ issued remitting the matter to the Administrative Review Tribunal to be determined according to law.
Background
On 18 January 2016, the applicant was invited to apply for a temporary protection visa or a SHEV under the fast-track assessment process[1]. On 31 March 2016, the applicant made a valid application for a SHEV visa with the assistance of a solicitor and registered migration agent.
[1] Court book (CB) 21
In support of his application the applicant provided a statutory declaration which set out his claims for protection. In summary, those claims were that:
(a)the applicant is a Sri Lankan citizen of Tamil ethnicity and Hindu faith;
(b)he had lived in the LTTE controlled Vanni area of the northern province for most of his life;
(c)his family are trustees of a Hindu temple. His father is the priest and has held other senior positions in the temple working committee, including being the current president of the village development board;
(d)he and his family were detained at the Chettikulam IDP camp from May to November 2009. He was not questioned at the camp. He was released along with his siblings after his father paid a bribe to an agent with connections to the Criminal Investigation Department (CID);
(e)he became involved in his father’s sand mining business after his father obtained a permit in 2010;
(f)in August 2012, CID officers extorted money from his father as the authorities knew that his mining business was doing well;
(g)in September or October 2012, CID officers attended the applicant’s home and demanded money or he would be sent to an army camp;
(h)the management of the business was subsequently handed over to a friend of the applicant’s father;
(i)CID officers came to his village to search for him a few times while he was away. He also received phone calls threatening that he would be abducted and taken to a camp if money was not paid;
(j)he lodged a complaint with the police regarding this particular CID officer;
(k)he departed Sri Lanka on 8 March 2013 legally using a Sri Lankan passport. He travelled via Singapore, Malaysia and Indonesia. The applicant arrived by boat on Christmas Island on 13 April 2013; and
(l)he fears that he could be abducted and killed by the Sri Lankan CID if he returns to Sri Lanka.
On 30 August 2016, the applicant was invited to attend an interview with an officer of the then Department of Immigration and Border Protection (Department)[2]. The interview was held on 11 November 2016[3].
[2] CB 113
[3] CB 134
After the interview with the delegate, the applicant’s legal representative provided some further written submissions by email dated 25 November 2016.
On 23 January 2017, the delegate of the Minister refused to grant the applicant a SHEV visa. In summary[4]:
The delegate accepted that the applicant may be imputed to be a supporter of the Liberation Tigers of Tamil Eelam (LTTE) because of his Tamil race, his age and his area of residency and accepted this may lead to him facing a level of discrimination but not serious or significant harm. The delegate also accepted that the applicant was subjected to extortion demands in the past however found that the perpetrators would not continue to seek him out four years later. The delegate concluded that the applicant does not face a real chance of serious harm or a real risk of significant [harm] in Sri Lanka.
[4] CB 255, [2]
The delegate’s decision to refuse the visa was informed in part by country information contained in a report published by the Department of Foreign Affairs and Trade (DFAT) titled “DFAT Country Information Report - Sri Lanka”. That report was published on 18 December 2015[5] (the 2015 Report).
[5] CB 177, footnotes to the delegate’s decision
The matter was then referred to the IAA pursuant to the fast-track review scheme prescribed in Part 7AA of the Act.
On 24 January 2017, a day after the delegate’s decision, DFAT published an updated “DFAT Country Information Report - Sri Lanka”[6] (the 2017 Report). Paragraph 1.5 of the 2017 report states, inter alia:
1.5This updated Country Information Report replaces the previous DFAT report on Sri Lanka published on 18 December 2015.
[6] Affidavit of Kathleen Clare Coffey sworn 8 August 2024, annexure KC-1
On 24 February 2017, the applicant’s legal representative provided the Authority with a “response to delegate’s decision” (a five-page submission) and a copy of a recent UN report on torture and other cruel, inhuman or degrading treatment or punishment in Sri Lanka[7]. Presumably aware that DFAT had released an updated report on Sri Lanka, the applicant’s legal representative submitted to the Authority, inter alia:
…that a report such as the 2017 DFAT report which the IAA is directed to consider under s 499 of the Act, which was not before the delegate (when the delegate made a finding), must be provided to the applicant in its entirety… as it is possible that there may be excerpts that may favour the applicant’s case… failing to provide a copy of the latest DFAT report may be considered as a breach of procedural fairness.
[7] CB 216-244
On 25 February 2017, the applicant’s legal representative provided further documents to the Authority, noting that it was “unclear if the attached documents were previously sent to the delegate”. The documents provided to the Authority included:
(a)a letter from the Human Rights Commission of Sri Lanka addressed to the applicant’s father (the HRC Letter). Although not translated into English the letter bears a legible date stamp dated 29 November 2016 and apparently records that a complaint from the applicant’s father had been registered and was receiving the attention of the Commission;
(b)a letter dated 10 February 2017 apparently written by an Attorney based in Sri Lanka (the Attorney’s Letter) which states that:
(i)the applicant’s father is the attorney’s client;
(ii)“[the applicant’s father] came to [the Attorney] on 23-11-2016 and informed [them] that some unidentified persons frequently visit in [his] house and inquired about his son [the applicant]’s whereabouts and demanding for his contact details. They threatened that if [the applicant’s father] fails to give the details of his son [the applicant], his another son [the applicant’s brother] will be in trouble.”; and
(iii)the Attorney told the applicant’s father to report this to the Human Rights Commission.
(c)A screenshot of an article published on TamilNet in 2005 regarding a senior PLOTE operative shot dead (the TamilNet news article).
Authority’s decision
On 23 November 2017, the Authority affirmed the delegate’s decision to refuse to grant the SHEV.
In its reasons at [4] the Authority acknowledged that the applicant’s representative had provided additional information to the Authority including the 5 page submission, a copy of the HRC Letter, a copy of the Attorney’s Letter, the TamilNet news article and a copy of the 2016 Report of the United Nations Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment in Sri Lanka.
The Authority recognised the limitations imposed on its ability to consider new information pursuant to s 473DD of the Act [5].
The Authority found that it was unable to consider the TamilNet news article dated 26 December 2005 or the letter from the Human Rights Commission dated 29 November 2016 because each of those documents could have been provided before the delegate’s decision was made [6].
Conversely, the Authority found that the letter from the Attorney-at-Law dated 10 February 2017 was new information which could not have been provided before the delegate’s decision was made. The Authority found that the letter contained information which, if found to be credible, was relevant to the safety and protection claims of the applicant and found that exceptional circumstances existed to justify its consideration [7].
At [9] the Authority stated that it had considered the written submission dated 24 February 2017 which had been received from the applicant’s representative.
The Authority noted the applicant’s claims for protection at [10]. Among those claims, the Authority acknowledged the applicant’s fears if returned to Sri Lanka were that:
·he could be abducted and killed by the Sri Lankan CID;
·he could be sent to a rehabilitation centre by the CID officers; and
·people in the village who have a close relationship with the Sri Lankan authorities and act as informers could cause him problems. These fears arise from instances where CID officers had demanded bribes from his father and an occasion where the applicant went to the police station and lodged a complaint about a CID officer.
The Authority accepted that the applicant is a national of Sri Lanka and that Sri Lanka is the receiving country for the purposes of the Act [13].
In assessing the applicant’s claim that people demanded money from his father and that his father paid bribes, and whether these events gave rise to the applicant facing harm now and in the foreseeable future, the Authority considered a number of matters [15].
At [19] the Authority notes that “country information” supported the applicant’s claim that wealthy business owners are subject to extortion demands in Sri Lanka, including in the Northern Province. Based on the country information and the consistency of the applicant’s claims that his father was subject to extortion demands, the Authority accepted that “this has occurred and continues to occur as claimed”. Relevantly, the country information relied upon is footnoted as “DFAT, ‘Country Information Report-Sri Lanka’, 18 December 2015”.
The Authority accepted the applicant’s claim that he was personally asked to pay money under threat of being sent to a rehabilitation centre if he did not comply. Relying on the same country information[8], the Authority noted that there is a rehabilitation centre in Vavuniya and that the Sri Lankan security forces maintain a strong presence in the Northern Province. The Authority accepted the applicant’s claim that after he made a complaint to the police, his mother was telephoned by people attempting to extort money, questioned about the applicant’s visit to the police, and as a result feared for the applicant’s safety [20].
[8] Reasons, Footnote 2 refers to the 2015 DFAT report
The Authority assessed the chance of the applicant facing harm now and in the foreseeable future in light of the extortion demands that had been made against him and his family. The Authority noted that the applicant’s father continues to pay bribes to the authorities but he, the applicant’s mother and younger brother continue to live in the family home and have not been harmed in any way [21]. Again relying on country information, including the 2015 DFAT Report, the Authority noted that there had been a change of government in Sri Lanka [22], that the security situation in the north and east of the country had greatly improved and that there had been a significant reduction in military personnel in the area [23].
The Authority accepted that if the applicant returns to his home area and involved himself in the family business or a business of his own he may have to pay bribes. However, again relying upon the country information, the Authority found that the applicant would be able to access police protection if he is subjected to extortion demands [25].
At [26]-[28] the Authority considered the Attorney’s Letter dated 10 February 2017. The letter states that the applicant’s father attended the Attorney’s office on 23 November 2016 to report that some unidentified persons had frequently visited the family home and made enquiries about the applicant’s whereabouts and warned that if details about the applicant’s whereabouts were not given up, his other son would be in trouble. The letter states that the Attorney was unable to assist the applicant’s father and advised him to make a report to the Human Rights Commission [26].
At [27]-[28] the Authority expressed concerns about the veracity of the contents of the Attorney’s Letter. Those concerns included that:
(a)the applicant had not mentioned claimed visits to the family home by unidentified persons in his written statement of claims;
(b)the applicant made no mention of these visits in his SHEV interview on 24 November 2016;
(c)the applicant had stated, in his SHEV interview, that nobody had come looking for him or called him since he left Sri Lanka in March 2013;
(d)it would be reasonable to assume that if the visits had occurred as alleged, the applicant’s father would have informed his son so that he could include that information in his protection visa application;
(e)it would be reasonable to assume that an Attorney would advise a person to report threatening visits to the police, not the Human Rights Commission; and
(f)there is no evidence that the applicant’s father has been in trouble since he had attended the Attorneys office and made a complaint to the Human Rights Commission.
Based on the concerns referred to above, the Authority found that the Attorney’s Letter had “been fabricated to strengthen the applicant’s claims for protection” [28].

The Authority found that the chance of the applicant being abducted or killed or being sent to a rehabilitation centre by the CID in relation to extortion demands or the payment of bribes is very remote. Accordingly, the applicant was found not to face a real chance of serious harm now or in the foreseeable future in relation to his claims of extortion. The Authority was not satisfied that the applicant’s fears of persecution in this regard were well-founded [29].
The Authority also explored the applicant’s claim that he will be detained, interrogated and harmed in Sri Lanka on suspicion of having links with the LTTE [30].
The Authority accepted that the applicant lived in an area that was under LTTE control and that he undertook work for the LTTE when required to do so. However, the Authority found that the applicant was not a member of the LTTE and had not carried weapons or taken part in any fighting [31]. The Authority also found that the applicant was not seriously suspected of LTTE involvement, terrorism or advocating for a separate Tamil state [32].
The applicant’s claims of having paid money to an agent for a bribe to be paid to officials so the applicant could depart Sri Lanka legally and without difficulty in March 2013 were found by the Authority to have been “exaggerated and unfounded” [33].
At [35] the Authority found that the applicant does not have an adverse profile with the Sri Lankan authorities as a person with LTTE involvement, notwithstanding his brother’s protection claims and status in Australia. Nor is the applicant’s association with his sister a factor which gives rise to any real chance of the applicant facing harm in Sri Lanka [36]. The Authority was not satisfied that the applicant registering with the United Nation’s High Commissioner for Refugees (UNHCR) in Indonesia would lead to him facing a real chance of harm in Sri Lanka now or in the foreseeable future [38].
The Authority explored and considered the applicant’s claim that he would be subjected to a real chance of harm by reason of the Department’s inadvertent release of personal details of approximately 9,250 people who were in detention in Australia on 31 January 2014.
In light of the available evidence, the Authority found at [43] that the applicant’s personal details had been inadvertently published but the Sri Lankan authorities would not have been aware of the applicant’s claims for protection as a result of that data breach itself. The Authority was satisfied that the details of the applicant’s claims were not accessed during the short time the information was available [44]. The Authority concluded that the data breach did not, of itself, give rise to a real chance of the applicant facing serious harm in Sri Lanka now or in the foreseeable future [46].
The Authority accepted that young Tamil men from areas previously controlled by the LTTE are often assumed to be involved with the LTTE. However, for reasons outlined earlier, the Authority did not accept that the applicant is imputed to have been involved with the LTTE [48].
At [49] the Authority noted that the applicant had been living outside Sri Lanka for more than four years, he no longer held a valid passport and if he returned to Sri Lanka would do so on a travel document. The applicant was concerned that this may cause the Sri Lankan authorities to believe that he had applied for protection in Australia.
The Authority considered the consequences for the applicant if he did return to Sri Lanka on a travel document. This would include him being questioned at the airport and undergoing identification, character and security checks. Relying on country information the Authority rejected the suggestion that failed Tamil asylum seekers are imputed with pro-LTTE opinion, or are suspected to have been involved in supporting the LTTE merely because they are Tamils and have sought asylum. Citing directly from the 2015 DFAT Report, the Authority noted at [50] of its reasons that:
“There have been thousands of asylum seekers return to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture or mistreatment… Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act.”
The applicant claimed that should he be returned to Sri Lanka and plead not guilty to the offence of departing Sri Lanka illegally, he would not have a family member present to bail him out. The Authority found this claim to be irrelevant as the applicant had not committed an offence as he had in fact left Sri Lanka legally on a valid passport [51]. The Authority found that the applicant would undergo routine processing upon his return to Sri Lanka on a travel document. If detained, it would only be for a short period and he would not be subjected to serious harm.
At [55] the Authority recorded that it had considered the each of the applicant’s claims individually and cumulatively and that it was not satisfied that those claims would lead him to face a real chance of serious harm in Sri Lanka. For that reason he failed to meet the refugee criteria [56].
From [57] the Authority considered whether the applicant had a valid claim for protection pursuant to the complementary protection criterion in s 36(2)(aa). Relying upon its earlier findings, the Authority found that the applicant does not face a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka. The Authority expressed satisfaction that the applicant does not face a real risk of being arbitrarily deprived of his life, of the death penalty, of being subjected to torture or cruel or inhuman treatment or degrading treatment or punishment [61]. The applicant’s claim for protection under the complementary protection criteria was rejected [62].
JUDICIAL REVIEW
On 20 December 2017, the applicant filed an application for judicial review of the Authority’s decision. The application was amended on 28 August 2024 and further amended on 29 August 2024.
The application was heard on 29 August 2024. Mr Krohn of counsel appeared for the applicant and Mr Anastasi, a solicitor, appeared for the respondents.
At the commencement of the hearing, I granted leave for the applicant to file and rely upon, their Further Amended Application dated 29 August 2024.
The Court also received and read the following affidavits without objection:
(1)affidavit of Kathleen Clare Coffey filed on 8 August 2024 (annexing a copy of the Department of Foreign Affairs and Trade (DFAT) Report, Sri Lanka dated 24 January 2017 (KC-1) and a copy of Ministerial Direction No. 56 “Consideration of Protection Visa Applications” made pursuant to s 499 of the Act (KC-2)); and
(2)affidavit of Charlee Austin Hawkes filed on 22 August 2024 (annexing a copy of the report entitled DFAT Country Information Report, Sri Lanka dated 18 December 2015 (CAH-1)).
Each of the parties filed a list of authorities and relied upon written Outlines of Submissions. The Minister also produced a court book prior to the hearing.
Grounds
By his Further Amended Application, the applicant seeks orders that the decision of the Authority made on 23 November 2017 be quashed and that the review of the delegate’s decision not to grant the applicant a protection visa be remitted to the Authority to be reviewed and determined according to law.
In seeking to impugn the decision of the Authority, the applicant identifies and particularises the following species of jurisdictional error:
(a)a failure by the Authority to consider relevant considerations including information, claims, integers of claims and questions squarely raised on the material before it;
(b)errors by the Authority in its interpretation or application of the law; and
(c)that the Authority was legally unreasonable or made findings without a logically probative basis.
Having regard to the jurisdictional errors as alleged, the key issues arising for determination in this application are:
(1)In relation to the HRC Letter, whether the Authority:
(a)failed to properly assess the HRC Letter as new information pursuant to ss 473DD(b)(ii) and 473DD(a) of the Act (Grounds 1(a), (b) and (c));
(b)misconstrued the law by failing to find that the HRC Letter was credible personal information (s 473DD(b)(ii)) and that there were exceptional circumstances to consider the letter (s 473DD(a)) (Grounds 2(a) and (b));
(c)misconstrued the law by finding that it was not permitted by s 473DD to consider the HRC Letter (Ground 2(c)); and
(d)unreasonably found that the HRC Letter did not meet s 473DD (Ground 3(a)).
(2)In relation to the Attorney’s Letter, whether the Authority:
(a)erred in not seeking new information under s 473DC about the letter before finding “… that the [Attorney’s] letter has been fabricated to strengthen the applicant’s claims for protection” (Ground 2(e)); and
(b)had no logical basis or was otherwise legally unreasonable to find that the Attorney’s Letter was fabricated – at least without seeking new information under s 473DC (Ground 3(b)(i)).
(3)In relation to the 2017 DFAT Report, whether:
(a)it was relevant information available to the Authority;
(b)the Authority unreasonably failed to consider the 2017 Report (Ground 1(c));
(c)the Authority was legally bound to consider the 2017 Report by reason of Direction No. 56 made by the Minister under s 499 of the Act and failed to do so (Grounds 1(d) and 2(d));
(d)the Authority failed to consider whether to get the 2017 Report (Ground 1(e)) or failed to use its power under s 473DC of the Act to get the Report (Ground 2(d)) or was legally unreasonable in not considering whether to get the Report or to consider the Report when it was evident from the applicant’s submissions that the 2017 Report existed (Ground 3(c));
(4)Whether the Authority had a logical basis and was not unreasonable in finding that “…the applicant’s claims of paying money to an agent for a bribe to be paid to officials so the applicant could depart Sri Lanka legally and without difficulty in March 2013 are exaggerated and unfounded” (Ground 3(b)(ii));
(5)Whether the Authority had a logical basis and was not unreasonable in finding that the applicant did not have a profile with Sri Lankan authorities as a person with LTTE involvement, notwithstanding his brother’s protection claims and status in Australia and that the chance of the applicant facing harm in Sri Lanka because of his sister’s relationship in the UK with a Sri Lankan Tamil who had been tortured was very remote.
Statutory Framework
The various grounds of review advanced by the applicant invite some exploration of the nature and scope of the framework within which the Authority was required to undertake its review of the delegate’s decision.
The Authority’s review of a delegate’s decision was required to be undertaken in accordance with the “fast track” review process set out in Part 7AA of the Act. That process applied to persons who entered Australia as irregular maritime arrivals between 13 August 2012 and 1 January 2014 and had not been taken to a regional processing country. It applied to those who were subsequently invited to apply for a temporary protection visa or SHEV.
The source of the Authority’s duty to conduct a review of a delegate’s decision is found in s 473CC of the Act:
Review of decision
(1) The Immigration Assessment Authority must review a fast-track reviewable decision referred to the Authority under section 473CA.
(2) The Immigration Assessment Authority may:
a. affirm the fast-track reviewable decision; or
b. remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.
The nature of the review
The explanatory memorandum which accompanied the introduction of Pt 7AA into the Act noted that the Minister (or delegate) would refer certain decisions made in relation to fast track applicants to the Authority, which would then “conduct a limited review” of those decisions. As to the nature of that limited review, the High Court observed 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. (emphasis added)
It is well settled that in a protection matter, the Authority must look at every claim and every integer of the applicant’s claims[9]. The obligation to do so is not relieved by the fast track process.
[9] Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802 at [42]
The review function of the Authority is, however, constrained by the provisions of Pt 7AA. Section 473DA provides that Div 3, Pt 7AA of the Act, together with ss 473GA and 473GB, is taken to be an “exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by” the Authority. Those provisions modify the usual requirements for procedural fairness, and any conduct of or discretion exercised by the Authority is to be measured against those modified requirements.
The Authority’s exercise of any statutory discretion – whether it be to request further information, to issue an invitation for a fast track applicant to attend an interview, or to conduct a hearing – is subject to the implied condition that it must be exercised reasonably. However, as the Federal Court explained in BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [71]:
[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. (emphasis added)
Consideration of new information
The practical role of the Authority under Pt 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. (emphasis added, citations omitted)
Consistent with the objective of a fast-track review on the papers, Part 7AA emphasises that there is no duty on the Authority to conduct a hearing or request new information from the applicant[10].
[10] See ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
However, the Authority is vested with discretions which enable it to consider additional material and to make relevant enquiries in certain prescribed circumstances. Relevantly, s 473DC provides as follows:
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 Authority must not consider new information unless it meets the criteria prescribed by s 473DD of the Act:
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
In AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 the High Court held that the Authority must assess new information provided by a referred applicant first against the criteria in both s 473DD(b)(i) and (ii) of the Act, and if either or both of those criteria are met, by taking that circumstance into account in then assessing whether there are exceptional circumstances for the purposes of s 473DD(a). At [11]-[12] the plurality said:
[11]Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
[12]The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the other criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).

Whilst the Authority must engage with the criteria s 473DD(b) first, that engagement need not be formulaic. It will be sufficient if, in a particular case, the court on judicial review is able to infer from the Authority’s reasons that it performed the requisite assessment against both paragraphs (b)(i) and (b)(ii). The question for the court is whether the substance of the criteria prescribed by s 473DD(b) has been considered prior to a consideration of whether “exceptional circumstances” exist for the purposes of s 473DD(a)[11].
[11] APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79] per Markovic J
The assessment of new information against paragraph (b)(i) is temporal and is a question of fact – the only relevant question being whether the new information was not, and could not have been, provided to the Minister before the Minister made the decision.
The assessment of whether new information is “credible personal information” for the purposes of paragraph (b)(ii) is more nuanced. In CSR16 v Minister for Immigration and Border Protection [2018] FCA 474, Bromberg J at [42] stated that properly understood, what constituted “credible” for the purposes of s 473DD(b)(ii) was whether the information provided by the applicant was capable of being believed. His Honour observed that the decision of whether to consider new information was anterior to the so-called “deliberative stage” of decision-making. At the anterior stage, s 473DD did not require the Authority to determine whether the proposed new information would impact its decision, rather the enquiry was whether it could have.
This is to be distinguished from the deliberative stage of decision-making where the Authority may substantively consider the new information admitted under s 473DD, along with all other information before it, in reaching findings of fact necessary to determine whether to affirm or remit the decision to refuse the grant of a visa.
In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150, a majority of the Full Court endorsed the approach taken by Bromberg J in CSR16 and found that the Authority could not undertake a “substantively evaluative process” at the anterior phase of decision-making. The decision on whether new information is admitted involves a different assessment and is to be undertaken before the substantive review.
SUBMISSIONS
Given the way the applicant’s counsel prosecuted the judicial review application, it is convenient to discuss the grounds of review and the parties’ submissions by reference to the particular new information to which the ground or submission relates.
Human Rights Commission Letter
Applicant’s submissions
The HRC Letter emerged because it was attached to a short email from the applicant’s legal representative to the Authority on 25 February 2017.
In relation to the HRC Letter, the applicant complains that the Authority:
(a)failed to properly assess the HRC Letter as new information pursuant to ss 473DD(b)(ii) and 473DD(a) of the Act[12];
(b)misconstrued the law by failing to find that the HRC Letter was credible personal information (s 473DD(b)(ii)) and that there were exceptional circumstances to consider the letter (s 473DD(a))[13];
(c)misconstrued the law by finding that it was not permitted by s 473DD to consider the HRC Letter[14]; and/or
(d)unreasonably found that the HRC Letter did not meet s 473DD[15].
[12] Grounds 1(a),(b) and (c)
[13] Grounds 2(a) and 2(b)
[14] Ground 2(c)
[15] Ground 3(a)
At [13] of his written submissions, counsel for the applicant submitted that:
A solicitor and migration agent made detailed written submissions to the Authority and also sent further country information and a letter from a Sri Lankan Attorney to corroborate the complaint which the applicant said his father made after threats to the applicant’s brother if the applicant did not return to Sri Lanka.
At the hearing, counsel for the applicant argued that the Human Rights Commission complaint was “corroborative evidence” of “the applicant’s claim that since he left Sri Lanka people had come looking for him at his home and had made threats to the applicant’s father about the applicant’s brother”[16].
[16] Transcript at P-5
The applicant submitted that prior to 25 February 2017, he had raised claims that CID officers came to his family’s home in search of him. For example, in a statutory declaration made on 27 March 2016, the applicant said that he was aware of CID officers searching for him while he was still living in Sri Lanka (emphasis added):
18. While I was away in Vavuniya town I am aware that CID officers came to my parent’s house in Puthur village in search of me a few times…
23. If I am returned to Sri Lanka I fear I could be abducted and killed by the Sri Lankan CID…
Further, on 24 November 2016, during the SHEV interview, the applicant said that “since leaving Sri Lanka the CID have called his family home looking for him”[17].
[17] CB 176
In its reasons, the Authority acknowledged that the applicant’s representative had provided the HRC Letter as part of the additional information for the purposes of the review[18].
[18] Reasons at [4]
The applicant accepts that the Authority properly averted to s 473DD of the Act[19]:
… I must not consider any new information unless, in summary, I am satisfied that there are exceptional circumstances to justify its consideration; and the new information was not, and could not have been provided before the delegate’s decision was made; or the new information is credible personal information which was not previously known and had it been known may have affected the consideration of the applicants claims. In considering the additional material provided by the applicant and applying the law I make the following findings.
[19] Reasons at [5]
The Authority found at [6] that the HRC Letter was “dated 29 November 2016 and could have been provided before the delegate’s decision was made” and was “therefore unable to consider it: s 473DD”.
The applicant does not take issue with the Authority’s finding, for the purposes of s 473DD(b)(i) that the date of the HRC Letter preceded the making of the delegate’s decision.
However, the applicant submits that the Authority completely elided the step in s 473DD(b)(ii) which required it to separately consider whether the new information was credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
At [31] of his written submissions, Counsel for the applicant submitted that if the Authority had considered whether the HRC Letter was credible personal information, it would have found it to be so, on the basis that the “new information” was:
·credible (in the sense of not being inherently unbelievable);
·personal (being a complaint relating to the applicant himself);
·not previously known (to the Minster); and
·capable of corroborating the applicant’s claim to have been the subject of attempted extortion under threat, and thus capable of affecting the consideration of the applicant’s claims.
Counsel for the applicant submitted that once the Authority identifies new information and a submission which relies upon it, it was incumbent on the Authority to consider the new information through the filters in both (b)(i) and (b)(ii) of s 473DD.
In short, the applicant submits that there “is no way that the Authority could have found that the HRC complaint was not credible personal information”, a step which it was required to take before considering whether there were exceptional circumstances. In the present case, the applicant submits that the Authority either failed to apply the filter in s 473DD(b)(ii) at all or, if it did, it misconstrued the provision and got it wrong. The applicant also submits that the failure to assess the HRC Letter through the filter of s 473DD(b)(ii) was legally unreasonable.
Minister’s submissions
The Minister submits that none of the grounds relating to the HRC Letter can succeed because the letter could not have met s 473DD(b)(ii).
Citing Plaintiff M174/2016 at [34], the Minister submits that in order to satisfy s 473DD(b)(ii) the Authority must be satisfied that “(1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant’s claims”.
The Minister submits that the HRC Letter could not have affected the consideration of the referred applicant’s claims because it was untranslated (contrary to the Authority’s Practice Direction for Applicants, Representatives and Authorised Recipients[20]), substantially meaningless and was not accompanied by submissions from the applicant which articulated how the document could have objectively corroborated any claim previously made by the applicant. The Minister concedes that the HRC Letter could corroborate the simple fact that some kind of complaint had been received by the Human Rights Commission, but otherwise it was of no probative value.
[20] CB 214, [25]
The Minister concedes that the Authority’s reasons do not expressly reveal consideration of the HRC Letter against s 473DD(b)(ii). However, the Minister submits that because the HRC Letter could never have met the s 473DD(b)(ii) criteria, it is open to the Court to infer that the Authority did consider, but saw no reason to set out, its findings in respect of that consideration.
In the alternative, the Minister submits that if the Authority did fail to consider s 473DD(b)(ii), its failure to do so was not material. At [26]-[28] the Authority dismissed the applicant’s claim that unidentified people frequently visited the applicant’s house looking for him. The Minister submits that, even if the Authority had taken the untranslated HRC Letter into account, it would be fanciful or improbable for the Authority to have reached any other conclusion.
For the same reasons, the Minister submits that there was no unreasonableness in the Authority finding that s 473DD was not met by the HRC Letter. The assessment of reasonableness incorporates an element of materiality.
Conclusion on the HRC Letter
In my view, on a fair reading of the Authority’s reasons, the Authority did fail to properly apply s 473DD to the HRC Letter, a document which the Authority had accepted was “new information” received in the course of its review of the delegate’s decision.
Paragraph [6] is the only paragraph which deals with the applicant’s father’s complaint to the Human Rights Commission. On a plain reading, the Authority found that it was unable to consider the letter because it predated the delegate’s decision. The Authority applied the filter in s 473DD(b)(i) but did not separately consider whether the HRC Letter might have met the credible personal information criteria in s 473DD(b)(ii). By failing to do so the Authority erred.
I do not accept the Minister’s submission that the Authority should be taken to have implicitly considered but chose not to set out its findings in relation to s 473DD(b)(ii). In my view, the Authority’s reasons are clear. The Authority found that the HRC Letter could not be considered for one reason and one reason only – it was dated before the delegate’s decision. That was the end of the matter.
By reason of its failure to consider whether the HRC Letter was credible personal information, the Authority also failed to consider whether there were exceptional circumstances to consider that new information. That was a failure to consider a mandatory relevant consideration and amounts to error.
That leaves the question of the materiality of the error. In my view the failure to consider whether the HRC Letter was credible personal information was material. In his statutory declaration and his interview with the delegate, the applicant did claim that people were looking for him and that his home had been visited. The HRC Letter, albeit untranslated, does by its date corroborate the claim that the applicant’s father had made a complaint to the Human Rights Commission after having been visited and threatened by persons looking for the applicant.
Unlike the Attorney’s Letter, there is no finding that the HRC Letter was a fabrication. The HRC Letter was corroborative of one of the applicant’s fears. If the HRC Letter had been considered it may have affected the overall assessment of the applicant’s claims for protection and resulted in a more favourable outcome. The error was material and therefore jurisdictional.
Attorney’s Letter – Ground 2(e)
Applicant’s submissions
The applicant claims that the Authority erred in not seeking new information under s 473DC of the Act about the Attorney’s Letter before finding “…. that the [Attorney’s] letter has been fabricated to strengthen the applicant's claims for protection”[21]. The applicant claims that the Authority’s failure to seek new information to verify the authenticity of the Attorney’s Letter was legally unreasonable in circumstances where the letter was potentially corroborative.
[21] CB 261, [28]
The applicant concedes that the Authority has no general obligation to seek new information, but submits that it may be legally unreasonable not to do so where the information is important and potentially corroborative. Further, the applicant submits that where the authenticity of a letter is in issue and a potentially grave adverse finding may be made about the truthfulness of an applicant, a reasonable decision-maker should have at least made an inquiry to verify the evidence before finding it was fabricated.
The applicant accepts that it was not for the Authority to gather evidence or make a case for him. However, the applicant submits that s 473DC(1) specifically permits the Authority to invite or obtain new information where relevant. Citing AMT15 v Minister for Immigration and Border Protection [2018] FCA 366, the applicant submits that a failure to conduct obvious enquiries which have the potential to have a material bearing on the applicant’s credibility can constitute jurisdictional error.
Minister’s submissions
The Minister submits that the applicant can only succeed if he can demonstrate that the Authority was unreasonable in not seeking new information from the applicant’s father’s attorney. In the context of the modified natural justice framework in Pt 7AA of the Act, the bar for unreasonableness is high and the applicant would have to establish that no other reasonable decision-maker would have adopted the same course.
Unsurprisingly, the Minister points to the explicit wording of s 473DC(2): “The Immigration Assessment Authority does not have a duty to get…any new information whether the Authority is requested to do so by a referred applicant”. The Minister reiterated that the fast track scheme was designed for a limited review on the papers where the Authority usually must not accept new evidence and has no hearing obligation.
The Minister submitted that the Authority’s decision to consider the Attorney’s Letter (after applying s 473DD) was an exercise of discretion in the applicant’s favour. But, having considered the letter, the Authority was entitled to weigh its credibility in the context of all other information before it and was not compelled to investigate it further. There was no informational gap which warranted the exercise of s 473DC. The Minister submits that it was open to the authority to conclude that the letter was likely concocted.
Conclusion on the Attorney’s Letter
In Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at 436 the plurality accepted “that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.” Such a failure would, in turn, constitute jurisdictional error.
In AMT15 the Federal Court (Tracey J) adopted SZIAI and confirmed that the then Refugee Review Tribunal (in that case), was not under any obligation to gather evidence or to make a case for the applicant. However, in circumstances in which there was no reason to suggest that a document was not authentic and where the document contained multiple contact details for its author, the court found that it would have been relatively easy for the Tribunal to have, directly or indirectly, contacted the author and enquired as to whether he had sent the letter. Other relevant questions could also have been asked of the author. In AMT15 the court went on to find that the failure to make these obvious enquiries had the potential to have a material bearing on the applicant’s credibility and some of his claims. The failure amounted to a constructive failure to exercise jurisdiction.
SZIAI and AMT15 are matters which involved the review of Tribunal decisions under Part 7 of the Act. The Minister submits, and I agree, that the applicant is asking the court to import those principles to Pt 7AA.
Even in the context of Pt 7 of the Act, the circumstances in which a failure to make an enquiry would amount to jurisdictional error will be exceptionally rare[22]. The circumstances in which the failure to make an enquiry, even an obvious one, would result in jurisdictional error in a Pt 7AA review will be rarer still.
[22] Minister for Immigration and Citizenship v Le (2007) 164 FCR 151; [2007] FCA 1318 at [60] per Kenny J, Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235; [2017] FCAFC 184 at [33] per Dowsett, Pagone and Burley JJ, DYI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 612 at [54] per Wheelahan J.
The applicant’s submissions fail to grapple with the express provisions of Pt 7AA as to the review being a limited, fast review, generally conducted on the papers. The approach in SZIAI is not compatible with the fast track review framework, in particular s 473DC(2) which expressly states that the Authority has no duty to seek or obtain further information.
In DYK16 v Minister for Immigration and Border Protection (2018) 267 FCR 69 the Full Court (Collier, Middleton and Rangiah JJ) said (at [72]) it was “questionable” whether there is a duty imposed by Pt 7AA of the Act on the Authority to make enquiries of the kind described in SZIAI[23]. That scepticism is now supported by a body of higher court judicial opinion, from which I do not intend to depart. There was no procedural unfairness.
[23] See also DNU20 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 627 at [63]-[64] per Button J, BJB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1683 at [109] per Wigney J, DTP18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 56 at [59]-[66] per Wigney J.
I accept the applicant’s concern that “fabrication” is a strong adverse conclusive finding which goes to his credit and undermines the strength of his application. The applicant argued that the finding was extreme and unfounded, essentially an accusation of fraud against him and his family without any direct evidence. Even the Minister concedes that it was harsh.
Nonetheless, the Minister argued and I accept that credibility findings are quintessentially for the decision-maker, so long as they are not so irrational or illogical as to amount to jurisdictional error. The Authority was entitled to assess the letter against the whole of the information before it and was entitled to draw an adverse inference without seeking more information. The Authority identified red flags and gave reasons for doubting the Attorney’s Letter. It enumerated inconsistencies and improbabilities that questioned the story behind it. These included the applicant’s initial statements not mentioning mysterious visitors, his statement that no one had come looking for him since he left and the unusual advice for the father to report the incident to the Human Rights Commission rather than the police.

Perhaps the Authority reached a conclusion which was stronger than a differently constituted Authority might have reached. But reasonable minds may differ. It was not a finding without a logical basis, nor was it so unreasonable that it was not open. The Authority’s reasoning, even if severe, fell within the range of rational conclusions supported by the evidence. The Authority is entitled to disbelieve evidence if it explains why. In my opinion, the rejection of the Attorney’s Letter did not involve jurisdictional error.
2017 DFAT Country Information Report – Grounds 1(c), 1(d), 2(d)
The applicant claims that the Authority erred by failing to obtain and consider the 2017 DFAT Country Information Report for Sri Lanka.
The 2017 DFAT Report was not in the materials referred to the Authority, and could not have been, because it was published after the delegate’s decision. The Authority’s decision does not contain any reference to the 2017 DFAT Report, although the reasons do reveal consideration of, amongst other things, the 2015 DFAT Report.
Though the applicant did not provide a copy of the 2017 Report to the Authority, it is submitted that the existence of the 2017 DFAT Report was explicitly drawn to the Authority’s attention in the written submission provided by the applicant’s solicitor and agent on 24 February 2017. It is to be recalled that in the first numbered paragraph of that submission, the applicant’s representative states:
DFAT 2017 report: it is my submission that a report such as the 2017 DFAT Report which the IAA is directed to consider under s 499 of the Act, which was not before the delegate (when the delegate made a finding), must be provided to the applicant in its entirety. DFAT reports are not available on public domains and are not accessible, hence the complete DFAT report should be provided to the applicant, as it is possible that there may be excerpts that may favour the applicant’s case. Though the 2017 DFAT report may appear to be similar in content to the December 2015 DFAT report, failing to provide a copy of the latest DFAT report may be considered as a breach of procedural fairness. (emphasis in original)
The applicant contends that the 2017 DFAT Report was recent, relevant information which related to abuses by the Sri Lankan authorities. The applicant submits that the report was relevant to his expressed fears of harm by members of the CID, it was available to the Authority and it was explicitly mentioned in the submissions made to the Authority, which the Authority said it had considered.
Furthermore, the applicant submits that the Authority was required by law to engage with and consider the 2017 DFAT Report in its assessment of the applicant’s claims for protection. This argument is premised on the submission that Ministerial Direction No. 56 made by the Minister under s 499 of the Act required the Authority (as a decision-maker on a protection matter) to consider that report. The applicant submits that the failure to consider the report is therefore jurisdictional error.
In the alternative, the applicant contends that even if the Authority was not legally bound to consider the 2017 Report, the Authority nevertheless fell into jurisdictional error because it was legally unreasonable for it not to have considered the most recently available country information.
Differences between the 2015 and 2017 DFAT Reports
The applicant argues that the failure to consider the 2017 DFAT Report led to error because information contained within it was highly relevant to the prevalence and culture of torture and abuse in Sri Lanka, including the abuse of persons in detention (even briefly) or under the control of the authorities of Sri Lanka. Whereas the Authority made some references to the allegations of torture or abuse of asylum seekers returning to the country, it concluded based on the earlier 2015 Report that the risk for returnees was low.
The applicant’s complaint is that even after the war and a change of government in 2015 there continued to be an entrenched and pervasive culture of torture and abuse by police and other authorities. The applicant submits that the 2017 DFAT Report noted these ongoing risks and if it had been properly considered by the Authority, its assessment of the risk of relevant harm may have been different. The applicant submits that the Authority’s reliance upon outdated country information necessarily compromised the performance of its statutory task.
In his written and oral submissions, counsel for the applicant sought to identify a number of “significant” differences between the information contained in the 2015 report (which was considered by the Authority) and the 2017 report (which appears not to have been considered). Crucially, the applicant submits that the 2017 report provides a more detailed, current and nuanced consideration of the risk of citizens being subjected to torture by Sri Lankan authorities - particularly citizens such as the applicant, who may be detained (even briefly) or might fall under the control of the authorities.
In his written submissions, counsel for the applicant articulated the principal differences between the 2015 and 2017 reports as follows (emphasis as per submissions and footnotes omitted):
37. The Authority made some references to the allegations of torture or abuse of asylum seekers returning to Sri Lanka. (CB 265-266, [50], [54]) but the 2017 DFAT report did not merely assess “that the risk of torture or mistreatment for the majority of returnees is low…” (CB 265, [50]), but also included reference to various sources of information about continuing violence in detention or under the control of the authorities in Sri Lanka, including reports of torture in 2015 and 2016, and reports of torture carried out by police, although it noted difficulty in confirming reports.
38. The thrust of this material 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. Yet the Authority did not consider this issue, nor the 2017 DFAT report in the course of its consideration of the risk to the Applicant while being briefly held in detention or in prison, while being questioned on return to Sri Lanka (whether or not as an illegal emigrant failed asylum seeker), though noting what it regarded as DFAT’s view of a low risk of harm to returnees, and some matters of the procedure applied to returnees.
39. The 2017 DFAT report said in part:
TORTURE
4.12 A number of reputable organisations have, over the last couple of years, published allegations of torture perpetrated by Sri Lankan military and intelligence forces, mostly related to cases from the period immediately following the civil conflict and involving people with imputed links to the LTTE (but are not reserved to this group).
4.13 These reports include:
•International Truth and Justice Project’s (ITJP) 2016 report, Silenced: Survivors of torture and sexual violence in 2015
•ITJP’s 2015 report, A Still Unfinished War: Sri Lanka’s Survivors of Torture and Sexual Violence 2009- 2015
•Freedom from Torture’s (FFT) 2015 report, Tainted Peace: Torture in Sri Lanka since May 2009
•Amnesty International’s 2012 report, Locked Away: Sri Lanka’s Security Detainees.
The 2016 ITJP report cited 20 cases of torture in 2015. FFT’s report cited eight torture cases in 2015. DFAT notes that 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.
….
4.15 DFAT is also aware of reported instances of torture carried out by the police. The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment visited Sri Lanka during April and May 2016 and reported that torture might be carried out by police in relation to regular criminal investigations, a risk which can increase when there is a perceived threat to national security.
4.16 In October 2016, the Human Rights Commission of Sri Lanka (HRCSL) submitted a report to the UN Committee Against Torture that claimed ‘torture to be of routine nature… practiced all over the country, mainly in relation to police detentions’ and that torture is used during interrogation and arrest and is used regardless of the nature of the suspected offence. A total of 208 torture complaints were received by the HRCSL as at 31 August 2016, compared to 600 in 2013. The geographic locations of torture reports are spread across Sri Lanka, with the most being reported in Colombo.
4.17… Victims of torture can complain to the Human Rights Commission of Sri Lanka or directly to the Supreme Court about a violation of their fundamental rights…..
4.18 DFAT assesses that torture in Sri Lanka, perpetrated by either military, intelligence or police forces, is not presently systemic or state-sponsored. DFAT further assess that the risk of torture from military and intelligence forces has decreased since the end of the civil conflict.
4.19 DFAT assesses that in cases where police are alleged to have mistreated or tortured an individual, such practices generally reflect low capacity, lack of training and due process in arrest and detention procedures, and poor policing methods that focus on extracting confessions rather than undertaking thorough investigations.
4.20 Because few reports of torture are proved or disproved it is difficult to determine the prevalence of torture but DFAT assesses that irrespective of their religion, ethnicity, geographic location, or other identity, Sri Lankans face a low risk of mistreatment that can amount to torture, in most cases perpetrated by the police. The incidence of torture has reduced in recent years, and therefore the allegations of torture pertain to a relatively small number of cases compared to the total population of Sri Lanka.
Torture and mistreatment of returnees
4.21 DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka but cannot verify these reports given that many allegations are made anonymously, often to third parties and sometimes long after the torture is alleged to have occurred.
4.22 Thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture or mistreatment. Although it does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low and continues to reduce, including for those suspected of offences under the Immigrants and Emigrants Act. Overall monitoring has reduced under the Sirisena Government and community fear of mistreatment has also decreased.
Overall, the applicant submits that the 2017 Report contained a much more rigorous statement regarding the risk of torture. While the applicant concedes that the 2015 and 2017 reports both ultimately assess the risk as “low”, the more recent report referred to the ongoing disquiet of the Special Rapporteur following a visit to the country. The applicant submits that the Rapporteur recognised that to some extent torture continues, information which must be relevant when one considers the applicant’s claims that he had in the past been the subject of extortion and abuse from authorities.
The Minister, on the other hand, submits that the extracts from the 2017 Report which deal with torture did not show any relevant degree of difference with the 2015 Report. The Minister points out that the 2015 Report which was considered by the Authority concluded that the risk of torture for the majority of returnees to Sri Lanka was assessed by DFAT as low (see [4.23]), and the same assessment is reached at [4.22] of the 2017 Report for substantially similar reasons. The Minister submits that there is no realistic possibility that consideration of the later report could have impacted on the Authority’s risk assessment.
Was the Authority bound to consider the 2017 Report?
I turn first to the applicant’s contention that the Authority erred by failing to consider country information which by law it was bound to consider by reason of Direction 56 made pursuant to s 499 of the Act. If the Authority had a statutory duty to consider the 2017 Report, any failure to do so would amount to jurisdictional error.
The applicant’s submissions
Section 499 of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. A person or body to whom a direction issues must comply with it. The Minister cannot, however, give directions which are inconsistent with the Act or its regulations (s 499(2)).
Direction 56 was made by the Minister for Immigration and Citizenship pursuant to s 499 on 21 June 2013[24]. The direction is titled “Direction no. 56 - Consideration of Protection Visa applications”. The direction commenced operation on 22 June 2013.
[24] Affidavit of Kathleen Clare Coffey sworn 8 August 2024, Annexure KC-2
In its terms, Direction 56 provides as follows:
Objectives
The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 65, 414 or 415 of the Migration Act 1958 (the Act) when considering an application for the grant of a Protection Visa and when reviewing a decision to refuse to grant a Protection Visa.
It is undesirable for first instance and review decision-makers to take inconsistent approaches to the decision making task where there is no rational basis for these inconsistencies. Accordingly, it is desirable that subject to the Migration Act and Regulations and other applicable laws, decision makers take as a starting point a common set of guidelines and country information.
Clauses
1. This Direction applies to a decision-maker performing functions or exercising powers under section 65, 414 or 415 of the Migration Act 1958 (the Act) when considering an application for the grant of a Protection Visa and when reviewing a decision to refuse to grant a Protection Visa. This direction is subject to the Migration Act and Regulations and other applicable laws.
2. In performing functions or exercising powers under section 65, 414 or 415 of the Act, the decision maker is to take account of the following guidelines prepared by the Department of Immigration and Citizenship to the extent that they are relevant to the decision under consideration.
‘PAM 3: Refugee and humanitarian - Complementary Protection Guidelines’
‘PAM 3: Refugee and humanitarian - Refugee Law guidelines’

3. Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision-maker, the decision-maker must take into account that assessment, where relevant, in making their decision. The decision-maker is not precluded from considering other relevant information about the country.
Dated this 21^st day of June 2013
Counsel for the applicant submitted that the Authority was bound to comply with Direction 56 because it was a decision-maker performing a review of a primary decision made under s 65 of the Act. As such, Direction 56 was engaged as a mandatory consideration in the Authority’s review, thus requiring the Authority to take into account the most recently available (2017) DFAT country information.
Counsel for the applicant conceded that Direction 56 was promulgated prior to the introduction of the fast track review process under Pt 7AA of the Act and the establishment of the IAA. Nonetheless, the applicant submits that a fast track review under Pt 7AA is still a review of a delegate’s decision made under s 65, being the type of decision to which the Ministerial Direction was directed. As the provisions of Pt 7AA contemplate a de novo assessment of the materials that were before the delegate (and such other new information as may be permissibly received), the applicant submits that the Authority is in effect performing the same function as a delegate in determining whether a Protection Visa should be granted under s 65.
The applicant submits that on a proper construction of the Ministerial Direction, it should be taken to apply to reviews undertaken by the Authority and not just to those undertaken by the Administrative Appeals Tribunal. The applicant submits that would be incongruent and contrary to the clearly stated objectives of the Direction if different approaches were to be adopted by different reviewing bodies when reviewing Protection Visa refusals. It is submitted that the Minister should not be taken to have mandated such inconsistency.
The Minister’s submissions
Although Direction 56 was in force at the time of the Authority’s decision, the Minister submits that it does not apply in its terms and does not give rise to a legal obligation or a basis for finding jurisdictional error. The Minister submits that the applicant’s argument to the contrary is at odds with prevailing judicial authority.
The Minister submits that the applicant’s argument fails to have regard to three matters which are critical to the proper construction of Direction 56.
First, the Direction was given by the Minister prior to the establishment of the IAA. Accordingly, at the time it was made the Minister cannot be taken to have directed the instrument to a decision-maker which did not then exist. In its terms, the Direction cannot apply.
Secondly, Pt 7AA was introduced and the Authority was established for a specific purpose, namely to conduct a fast track review of Protection Visa refusal decisions. It is submitted that Pt 7AA was introduced to operate as a self-contained scheme of limited review. As has so often been stated, the provisions of Pt 7AA contemplate a review on the papers of the material before the delegate. The Authority can extend the review to include the assessment of new information, but it is not obliged to do so.
The Minister submits that the Direction did not apply to the Authority because its decision-making powers arise under s 473CC of the Act, not ss 65, 414 or 415. It is submitted that when Pt 7AA was introduced, Parliament can be assumed to have been aware of Direction 56 but nonetheless legislated a scheme which did not embody that approach.
Thirdly, and relatedly, it is submitted that that Direction 56 is inconsistent with the Pt 7AA review mechanism established by Parliament and is therefore invalid by reason of s 499(2). Whereas Direction 56 mandates a consideration of the most recent DFAT country information, Pt 7AA permits the Authority to consider new information in limited circumstances but does not require it. The Minister submits that a Direction cannot compel the Authority to consider information that is not in the referred file, given that the Authority must conduct the review on the basis of the referred file (s 473DB(1)), the Authority is under no duty to get new information in any circumstances (s 473DC(2)) and new information can be only considered if it meets the requirements of s 473DD of the Act.
The question of whether the Ministerial Direction applies to Pt 7AA reviews conducted by the IAA has been the subject of limited judicial consideration. In most cases, judges of this Court have touched upon the issue only in obiter.

In DTH17 v Minister for Immigration [2018] FCCA 729, Judge Smith was confronted with an allegation that the IAA had failed to comply with Direction 56. At [36] his Honour opined:
Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act. Ministerial Direction no.56 was a direction made by the Minister under s 499(1). That Direction was not in evidence before the court; however, it has been considered in a number of other cases and, for present purposes, it may be accepted that it was addressed to a person or body “performing functions or exercising powers under section 65, 414 or 415 of the Act. The IAA was not performing any such function.
This was followed by Judge Emmett in DEZ16 v Minister for Immigration [2018] FCCA 1317. There, Judge Emmett held at [52] that:
…Ministerial Direction no. 56 is not directed to the functions or powers of the Authority. Ministerial Direction no.56 is directed to the performance by the Administrative Appeals Tribunal of its functions and the exercise of its powers, rather than the functions and powers of the Authority.
Relevantly, at [54] her Honour continued:
Ministerial Direction No.56 makes clear on its face that it is not intending to direct that the Authority is required to have regard to the PAM3 Guidelines in relation to Complementary Protection Guidelines and Refugee Law Guidelines in the discharge of its functions and the exercise of its powers. The Authority performs its function and exercises its powers under Division 2, Part 7AA of the Act (s.473CC of the Act), whereas as stated above, the Administrative Appeals Tribunal conducts its review in accordance with Division 2, Part 7 of the Act.
Endorsing the view expressed by Judge Smith in DTH17, Judge Emmett went on at [55] to find that there had been no error on the part of the Authority for failing to consider the PAM3 Guidelines in the conduct of its review, as would have been the case if the Authority was bound by the Ministerial Direction.
In BHX18 v Minister for Home Affairs [2018] FCCA 3498 (BHX18 2018), in an observation which the applicant in this case accepts did form part of the ratio decidendi of the decision, Judge Baird found at [44]-[45] that:
[44] … Ministerial Direction no.56 guides decision-makers performing functions or exercising powers under ss 65, 414 or 415 of the Act when considering an application for grant of a protection visa, and when reviewing a decision to refuse to grant a protection visa.
[45] The Authority’s decision making power, however, arises under s 473CC of the Act, not s 65 of the Act; see the decision of Judge Smith of this Court in DTH17 v Minister for Immigration [2018] FCCA 729 at [36].
In BND18 v Minister for Immigration [2019] FCCA 2218, Judge Driver agreed with the Minister’s submission that the IAA was not bound by an obligation to consider certain material pursuant to Direction 56. His Honour adopted the approach of Judge Baird in BHX18 2018 and reiterated at [50] that:
…As for any obligation pursuant to Direction 56, that Direction had no application as the Authority’s decision-making power arises under s 473CC of the Migration Act, not s 65.
However, on the appeal in BHX18 v Minister for Home Affairs [2019] FCA 705 (BHX18 2019), Rares J did not clearly endorse the previous line of authority. Without expressly finding whether the Authority was bound to apply the Ministerial Direction, his Honour was inclined to accept, as the applicant argues in this case, that in conducting its review function under Pt 7AA the Authority was exercising the Minister’s power under s 65. At [16], his Honour reasoned:
… since s 473CC required the Authority to review a fast track reviewable decision that the Minister had referred to it under s 473CA, and gave it power either to affirm the decision or to remit it for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by the regulations, prime facie, a decision of the Authority to affirm a decision of a delegate to refuse to grant a Visa directly involved the exercise of the Ministers power under s 65.
Most recently, in DXP18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 774 Judge Ladhams observed at [85], in obiter, that the Authority was not bound to have regard to the most up-to-date country information published by DFAT “because Ministerial Direction no. 56 which was in effect at the time of the Authority decision, does not apply to reviews conducted by the Authority”.
The applicant formally submits that the Authority was bound by the Ministerial Direction. I have been invited to reconsider the question and to depart from the current line of judicial authority if I find the earlier judgments were plainly wrong.
Consideration
As mentioned, Pt 7AA was enacted after the making of Direction 56. The Direction was issued under the Act, and Pt 7AA forms part of the Act itself. The Direction can be viewed as subordinate legislation and the Direction itself explicitly states that “this direction is subject to the Migration Act and Regulations and other applicable laws”.
There is an inherent inconsistency between the Direction, which requires the decision-maker to take into account the latest DFAT report, and Pt 7AA, which prescribes a limited review function where the Authority is not obliged to take into account any new information. By reason of s 499(2) of the Act, the Direction cannot operate to the extent that it is inconsistent with the Act.
Furthermore, the normal canons of statutory construction weigh against the applicant’s argument. Pt 7AA was enacted for an entirely specific purpose: to establish the fast track review process. Where the provisions of a particular Act of Parliament dealing with a particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication[25]. It can be assumed that when Parliament legislated Pt 7AA, it was conscious of the Ministerial Direction and intended that the fast track process would prevail to the extent of any inconsistency.
[25] Goodwin v Phillips (1908) 7 CLR 1 at 7
In Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, it was held at 1 that:
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
The specificity of the fast track review process prescribed in Pt 7AA can be contrasted with Direction 56, which was issued to “guide decision makers performing functions or exercising powers under section 65, 414 or 415 of the Act when considering an application for the grant of a Protection Visa and when reviewing a decision to refuse to grant a Protection Visa”. In my view, it can be inferred that it was Parliament’s intention that the fast track review process would be a free-standing framework of limited review, unlike the process which applied to first instance delegate decisions or reviews by the AAT.
A number of previous decisions found that Direction 56 did not apply because the Authority did not exercise decision-making power under s 65 of the Act. I consider that conclusion is wrong. I accept the submission of the applicant that in conducting a de novo review of the decision to refuse a protection visa, the Authority does exercise the Minister’s power under s 65: BHX18 2019 at [16] per Rares J, albeit within the framework of Part 7AA
However, I find that Direction 56 does not apply to the Authority for the other reasons articulated in the line of cases referred to above. The Authority was not bound by Direction 56 to consider the 2017 DFAT Report.
Was a failure to consider the 2017 DFAT report legally unreasonable?
Even if the Authority was not bound by Direction 56 to consider the 2017 DFAT Report, the applicant contends in the alternative that in all the circumstances of the case it was unreasonable for the Authority not to have done so.
Part 7AA emphasises that there is no duty on the Authority to conduct a hearing or request new information from the applicant. However, in s 473DC the Authority is vested with discretions which enable it to consider additional material and to make relevant enquiries in certain prescribed circumstances.
The Authority must exercise the discretion in s 473DC reasonably.[26] It is plainly open to the Court to find that an unreasonable failure to consider information which ought to have been considered can give rise to jurisdictional error, even if the decision-maker was not bound by legislative instrument to take the information into account.
[26] Plaintiff M174/2016 at [21], [86], ABT17 at [3], [61], [80].
In CVZ17 v Minister for Immigration, Citizenship and multicultural Affairs [2022] FedCFamC2G 481, Judge Humphreys of this Court considered another case where a Sri Lankan applicant alleged that the Authority had fallen into jurisdictional error by failing to consider the 2017 DFAT country information. In relation to the principled approach to a case such as the present, his Honour said at [37]-[38]:
[37] In some circumstances it may be unreasonable for the Authority not to seek, or consider seeking, the most recent DFAT country information report regarding an applicant’s country of reference: (see; BDI17 v Minister for Immigration [2018] FCCA 2162 at [70] – [72]; BND18 v Minister for Immigration [2019] FCCA 2218 at [49]). The decision as to whether it would be unreasonable for the Authority not to seek such report, depends, in part upon whether the updated DFAT report differs in its conclusions from a previous DFAT report: (see; BHX18 v Minister for Home Affairs [2018] FCCA 3498 at [52], [78](c) and [81]). Further, it is not necessarily an error for the Authority to rely on old DFAT report where the old report is not contradicted or rendered unreliable by the new report: (see; AYC18 v Minister for Immigration (No 2) [2020] FCCA 1637 at [103], [107]).
[38]The Authority’s reasons for its decision does not expressly state that it considered seeking the 2017 report. However that does not, of itself, support an inference that the Authority did not consider exercising that discretion, because the Authority is not required to record in its reasons whether it has considered exercising a procedural discretion: (see; CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [42]).
The onus is on the applicant to establish that the Authority did not consider exercising its discretion to seek the 2017 report. In CVZ17, the applicant failed to do so.
As in CVZ17 at [37], the Minister submits that in circumstances where the 2017 DFAT report was not contained in the referred material, the applicant can only succeed if he can demonstrate that the Authority’s failure to obtain the 2017 report pursuant to s 473DC(1) was unreasonable[27].
[27] See also BND18 v Minister for Immigration [2019] FCCA 2218 at [48]-[54].
Consideration
When the reasons are read fairly and as a whole, I am not satisfied that the Authority considered or even turned its mind to obtaining the 2017 Report. In my view it was unreasonable for the Authority not to have done so.
Consideration of the most recent available information is a core aspect of the decision-maker’s task. In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, the Full Court considered whether a failure to consider the most recently available information is a jurisdictional error. The court observed at [73] – [74]:
[73] Whatever might be the general principle that administrative decision-making should be based on the most up-to-date information (see Peko-Wallsend at 45) in the context of decision-making about s 36(2)(a) of the Migration Act and Art 1 of the Convention, attention to current information is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction. This is, as we have endeavoured to explain, because of the predictive and speculative nature of the task involved in determining whether a person’s fear of persecution for a Convention reason on return to her or his country of nationality is well founded.
[74] That is not to say that decision-makers cannot rely on information which is several years old. They may do so lawfully as part of a weighing process after considering all information available to them, and deciding which information best and most reliably supports the prediction of future risk they are called on to make. Perhaps more recent information simply confirms older and more detailed information. Perhaps more recent information is from less reliable, or tainted, sources. There are many possibilities about why a decision-maker may choose, lawfully, to rely on all the information and still perform the task required by s 36(2)(a) and Art 1. In such cases, one would expect the Tribunal’s reasons to disclose this kind of evaluation process, and the conclusion it reached would be within its jurisdiction.
As the Full Court held in MZYTS it is not necessarily an error for a decision-maker to rely on an old report, particularly where the old report is not contradicted or rendered unreliable by a new report. However, where a new report is known to be in existence, one would expect to find some explanation from the decision-maker as to why the later report was not considered or the earlier report was preferred.
In the present case there are a number of matters which lead me to the conclusion that the Authority’s failure to obtain or consider obtaining or its failure to consider the 2017 Report was unreasonable.
First, it is plain from the reasons of the delegate that the 2015 Report informed many of its findings. That report was extensively footnoted and the report itself would have formed part of the materials referred to the Authority. The relevance of country information to the assessment of the applicant’s claims for protection should have been starkly apparent.
Secondly, and if not more importantly, a primary purpose of DFAT country reports is to inform decision-makers with respect to protection visa applications. That purpose is reinforced by the mandatory requirement in Direction 69 for delegates and the Administrative Appeals Tribunal to take such reports into account. As mentioned above, the Ministerial Direction does not apply to the Authority per se, but the inherent importance and weight of current country information should be self-evident to a decision-maker undertaking a de novo review of a protection visa refusal.
Thirdly, I infer that the Authority was aware or ought reasonably to have been aware that a new DFAT Report for Sri Lanka had been published. In its reasons, the Authority said that it had considered the applicant’s written submission. In that submission the applicant explicitly referred to the recently published 2017 Report, requested a copy of it and argued (albeit incorrectly) that it must be given consideration.
In APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23, Markovic J found that it was not legally unreasonable for the Authority not to have considered a more recent DFAT Report. But in that case, there was no evidence that the Authority had actual or constructive knowledge of the new report. In this case the report was squarely drawn to the Authority’s attention.
Fourthly, and in any event, I would be extremely surprised if members of the Authority were unaware of the newly published report. The applicant was aware of it and flagged it. Decisions of the Authority routinely rely on DFAT country information and it would be reasonable to expect that the most recent version would be brought to the attention of decision-makers and made readily accessible.
Fifthly, the Minister submitted that the more recent DFAT Report concluded that the risk of torture or mistreatment for most returnees is “low”, the same conclusion reached in the 2015 Report. The Minister submitted therefore that any failure to consider the new report was not material and caused the applicant no prejudice.
I do not agree that the differences between the 2015 and 2017 DFAT Reports can be dismissed as immaterial. True it is that the vast majority of the content in the two documents is common and that the latter is an update of the former, rather than a completely new publication. But that only highlights the importance of the update as it is based on more recent information and is considered worthy of inclusion.
In my view, the present case is more akin to the circumstances in DXP18. In that case, Judge Ladhams found that an updated DFAT Report had been published about a month before the Authority’s decision. Her Honour found that although the Authority was not bound by Direction 69 to have regard to the most recent country information, where the Authority had knowledge that a new report had been published it was unreasonable not to consider whether to get that new information as differences between the earlier and later reports may have been relevant to the applicant’s claims.
In my view the Authority acted unreasonably in otherwise failing to exercise, or to consider the exercise of, its discretion in s 473DC of the Act to obtain a copy of the 2017 Report.
An error will only amount to jurisdictional error if there is a realistic possibility that the Authority’s decision could have been different that the error not occurred: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at [7].
As to materiality, I have already found that the Authority’s failure to properly consider the HRC Letter against the criterion in s 473DD(b)(ii) constituted jurisdictional error. I similarly find that the Authority’s error in relation to the 2017 Report was jurisdictional.
In my view it is not to the point that the two DFAT Reports ultimately concluded that the risk of torture or mistreatment for returnees was “low”. It is not the Authority’s task to simply adopt DFAT’s conclusion. The Authority’s task is to be informed by the country information but as part of its own independent assessment of the applicant’s claims and his fear of harm. That independent assessment requires the Authority to engage in a predictive and speculative consideration of the circumstances to which an applicant might be returned. Subtle and nuanced shifts in available information from one report to another could impact that predictive assessment.
I cannot exclude the realistic possibility that the 2017 Report, if it had been considered by the Authority, could have impacted the assessment of the claims raised by the applicant. I find that the error was material.
Whether the Authority made findings on a logical basis
The applicant also takes issue with the Authority’s conclusions regarding his risk profile, arguing that they ignored evidence and defy common sense. In particular, the applicant seeks to impugn findings at paragraphs [28], [33], [35] and [36] of the Authority’s reasons.
At [28], the Authority found that the Attorney’s Letter had been fabricated to strengthen the applicant’s claims for protection.
At [33], the Authority found that the applicant’s claims of paying a bribe to an agent to leave Sri Lanka “legally and without difficulty” were “exaggerated and unfounded”.
At [35] the Authority concluded that the applicant did not have an adverse profile with the Sri Lankan authorities as a person with an LTTE involvement, notwithstanding that the applicant’s brother had been granted a protection in Australia on the basis of LTTE related persecution.
At [36] the Authority found that the applicant’s profile was not heightened by reason of the fact that his sister was in a relationship with a Tamil man who had been tortured. The Authority found the applicant’s connection to this man was very remote and not a factor giving rise to any risk of harm to him.
Consideration

Other than in relation to the Authority’s finding that the Attorney’s Letter had been fabricated, the applicant’s written and oral submissions did not develop these remaining grounds. In the overall scheme of the review hearing, the allegations of illogical or unreasonable findings were second-order issues.
On their own, I am not persuaded that the findings referred to above were illogical or lacked any rational or cogent basis. To demonstrate jurisdictional error it is necessary for the applicant to identify extreme illogicality or irrationality in the chain of reasoning or to establish that the findings were so unreasonable that no other reasonable decision-maker could have reached the same conclusion. The findings about which the applicant complains are not of that type.
DISPOSITION
In the course of these reasons, I have concluded that the Authority fell into jurisdictional error in two ways. The Authority failed to consider whether the HRC Letter was credible personal information for the purposes of s 473DD(b)(ii) and therefore failed to consider whether there were exceptional circumstances justifying consideration of that new information. The Authority also fell into error by failing to obtain or to consider obtaining the 2017 DFAT Report.
I have found that these errors were material and had they not occurred there is at least a realistic possibility that the outcome on review might have been different. There is no guarantee that would be so, but the jurisdictional errors have denied the applicant that possibility.
The applicant is entitled to the relief sought in his further amended application. I will make orders that the decision of the Authority be quashed and that a writ of mandamus be issued to the Administrative Review Tribunal to hear and determine the applicant’s application according to law.
I will hear the parties on the question of costs.

I certify that the preceding one hundred and eighty-seven (187) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes.
Associate:
Dated: 3 September 2025

File number:	MLG 2790 of 2017
Judgment of:	JUDGE FORBES
Date of judgment:	3 September 2025
Catchwords:	MIGRATION – protection visa – judicial review of decision of Immigration Assessment Authority to refuse visa – where new DFAT country information published before Authority’s decision – whether Authority bound by Ministerial Direction no. 56 to consider most recent country information – whether unreasonable not to consider new information – whether Authority failed to properly assess whether documents were credible personal information – whether Authority failed to consider whether exceptional circumstances existed – whether Authority misunderstood or misinterpreted the law – whether logically probative basis existed for finding document was fabricated – jurisdictional error found – matter to be remitted
Legislation:	Migration Act 1958 (Cth) ss 36(2), 473CC, 473DA, 473DB, 473DC, 473DD, 473GA, 473GB, 499
Cases cited:	ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 AMT15 v Minister for Immigration and Border Protection [2018] FCA 366 Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 AYC18 v Minister for Immigration (No 2) [2020] FCCA 1637 BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 BDI17 v Minister for Immigration and Border Protection (2018) 339 FLR 147; [2018] FCCA 2162 BHX18 v Minister for Home Affairs [2018] FCCA 3498 BHX18 v Minister for Home Affairs [2019] FCA 705 BJB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1683 BND18 v Minister for Immigration [2019] FCCA 2218 CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 CUZ17 v Minister for Immigration & Anor [2019] FCCA 3074 CVZ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 481 DEZ16 v Minister for Immigration [2018] FCCA 1317 DNU20 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 627 DTH17 v Minister for Immigration [2018] FCCA 729 DTP18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 56 DXP18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 774 DYI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 612 DYK16 v Minister for Immigration and Border Protection (2018) 267 FCR 69 Goodwin v Phillips (1908) 7 CLR 1 Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802 Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235; [2017] FCAFC 184 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration and Citizenship v Le (2007) 164 FCR 151; [2007] FCA 1318 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Division:	Division 2 General Federal Law
Number of paragraphs:	187
Date of last submission/s:	29 August 2024
Date of hearing:	29 August 2024
Place:	Melbourne
Counsel for the Applicant:	Mr Krohn
Solicitor for the Applicant:	AUM Lawyers
Solicitor for the First Respondent:	Mr Anastasi; Clayton Utz
The Second Respondent:	Submitting appearance, save as to costs

MLG 2790 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	FQF17 Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

ORDER MADE BY:	JUDGE FORBES
DATE OF ORDER:	3 SEPTEMBER 2025