FRZ17 v Minister for Immigration, Citizenship and Multicultural Affairs - [2025] FedCFamC2G 107

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FRZ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 107

File number: MLG 2828 of 2017

Judgment of: DEPUTY CHIEF JUDGE MERCURI

Date of judgment: 6 February 2025

Catchwords: MIGRATION– Application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise visa – where the applicant claims that the Authority did not consider relevant or new information under section 473DD of the Act – finding that the Authority gave proper consideration to the information before it – jurisdictional error not established – application dismissed with costs.

Legislation: Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa), 473DB(1), 473DC, 473DD, 473EA

Cases cited:
ALJ18 v Minister for Home Affairs [2020] FCA 491

EGY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 796

Hossain v Minister for Immigration and Border Protection [2018] HCA 34

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3

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

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17

SZSZW v Minister for Immigration and Border Protection [2015] FCA 562

Division: Division 2 General Federal Law

Number of paragraphs: 140

Date of last submission/s: 19 August 2024

Date of hearing: 19 August 2024

Place: Melbourne

Counsel for the Applicant: Mr A Krohn

Solicitor for the Applicant: Elderwood Lawyers

Counsel for the First Respondent: Mr M Plitsch of Australian Government Solicitor

Counsel for the Second Respondent: Submitting appearance, save as to costs
ORDERS

MLG 2828 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
FRZ17

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

DEPUTY CHIEF JUDGE MERCURI

DATE OF ORDER:

6 FEBRUARY 2025

THE COURT ORDERS THAT:
1.The applicant’s application be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.

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

Before the court is an application for judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) dated 5 December 2017. The Authority affirmed the decision of a delegate of the first respondent (‘the Minister’) to refuse to grant the applicant a Safe Haven Enterprise (subclass 790) visa (‘the visa’) made on 30 May 2017.
BACKGROUND
The applicant is a Sri Lankan citizen of Muslim religion.[1]
[1] Court book at pages 82 and 84.
The applicant arrived in Australia as an irregular maritime arrival in October 2012.[2] The applicant participated in an entry interview with an officer of the Department of Immigration and Citizenship (‘the Department’) on 6 January 2013 (‘entry interview’).[3]
[2] Court book at page 58 and 89.
[3] Court book at pages 44 to 61.
On 7 January 2016, the applicant was invited to apply for the visa, having been advised that the Minister ‘lifted the bar’ allowing him to do so under section 46A of the Migration Act 1958 (Cth) (‘the Act’).[4]
[4] Court book at pages 62 to 67.
On 20 December 2016, the applicant, via his representatives at the time, applied for the visa. Annexed to the applicant’s visa application was a Statutory Declaration affirmed by the applicant dated 2 September 2016, in which the applicant articulated his protection claims, which related to his proximity to a political figure assassinated in 2011 and fearing harm as a result.[5]
[5] Court book at pages 113 to 117.
On 7 April 2017, the applicant was invited to attend an interview with a delegate, scheduled for 28 April 2017,[6] which the applicant attended together with his representative. Both prior to and following the interview with the delegate, submissions were provided on the applicant’s behalf by the applicant’s representative, dated 26 April 2017 and 22 May 2017 respectively.
[6] Court book at pages 138 to 140.
On 30 May 2017, the applicant was notified by letter to his representatives that a delegate of the Minister had refused his application for the visa.[7] The applicant was also advised that the refusal decision was referred to the Authority,[8] and the referral was confirmed in writing on 2 June 2017.[9]
[7] Court book at page 189 to 203.
[8] Court book at page 189.
[9] Court book at page 212.
The applicant changed his representation. The applicant’s second representative provided submissions to the Authority on the applicant’s behalf on 15 June 2017 (‘the June 2017 submissions’).[10]
[10] Court book at pages 229 to 235.
On 5 December 2017, the Authority affirmed the delegate’s refusal decision.
AUTHORITY’S DECISION
The Authority’s decision of 5 December 2017 is set out at pages 241 to 253 of the Court Book.
At paragraphs [3] to [6], the Authority identified the information before it, including the June 2017 submissions, which the Authority found contained new information that was not before the delegate. The Authority was not satisfied that the new information satisfied the requirements of section 473DD of the Act warranting its consideration.
The Authority summarised the applicant’s claims for protection at paragraph [7] of its reasons.
The Authority set out the applicable statutory provisions at paragraphs [8] and [9] and accepted the applicant’s identity as claimed, and, at paragraph [10], that the receiving country is Sri Lanka.
At paragraphs [11] to [29], the Authority considered the applicant’s protection claims with respect to his purported political opinion and involvement. The Authority made a number of adverse credibility findings against the applicant before ultimately concluding it was not satisfied the applicant had a well-founded fear of persecution for reasons of his imputed political opinion.
At paragraphs [30] to [37], the Authority considered whether the applicant met the refugee criteria because he was a Muslim man married to a Hindu woman who had converted to Christianity. The Authority ultimately concluded that he did not.
At paragraph [38], the Authority found that as the applicant had previously indicated he was Muslim, and not of Tamil ethnicity, it was not satisfied that there was a real chance he will face harm as a Tamil, or by being perceived to be Tamil.
At paragraphs [39] to [46], the Authority considered the applicant’s protection claims with respect to his illegal departure from Sri Lanka. The Authority referred to a report from the Department of Foreign Affairs and Trade (‘DFAT’) dated 24 January 2017, and ultimately found that while the applicant may be subjected to questioning, arrest, and brief detention upon a return to Sri Lanka due to his illegal departure, this would not amount to serious harm to the applicant and nor did the material suggest that he would be unable to pay any fine imposed.
The Authority concluded at paragraph [47] and [48] that the applicant did not meet the requirements of the definition of a refugee and therefore did not meet section 36(2)(a) of the Act.
At paragraphs [49] to [53], the Authority considered and rejected the applicant’s claims under the complementary protection provisions in section 36(2)(aa) of the Act.
The Authority therefore affirmed the delegate’s decision not to grant the applicant the visa.
PROCEEDINGS IN THIS COURT
These proceedings were commenced by way of an application for judicial review filed on 22 December 2017. The applicant obtained legal representation on 26 April 2024 and lodged an amended application on 31 July 2024, which was accepted for filing on 5 August 2024.
The applicant was represented at the hearing before me.
GROUNDS OF REVIEW
The applicant raises three grounds of review in his amended application. I will address them in turn.
Ground 1
By ground 1, the applicant asserts that:
1. The Second Respondent (“the Authority”) fell into jurisdictional error in not considering relevant considerations, including claims, integers of claims or material questions of fact or information.
PARTICULARS
(a)The Authority did not consider with the engagement required by law the Applicant’s claim that it was precisely because of his father’s support for the Mahajana political party (rather than because of any detailed knowledge by the Applicant about the party) that the Applicant was a supporter of that party and a particular political candidate (CB 113-116, [3]-[19]; 245-248, [11]-[29])
(b)The Authority did not consider as required by law all the information in the Entry Interview (or “arrival interview”) of 6 January 2013, including the Applicant’s answer to the question why he left his country of nationality (CB 56, Q. 1) and his claim that a friend was taken and beaten and murdered, and that he feared the same would happen to him. (CB 61, Q. 18); cf CB 246, [18])
(c)The Authority did not consider as required by law all the information relating to torture and other abuse of human rights including material submitted by his former representatives in their submissions dated 26 April 2017 (CB 160-168), in their submissions dated 22 May 2017 (CB 180-186), and in the “DFAT Country Information Report – Sri Lanka”, 24 January 2017, [4.12]-[4.22]. (CB 250-252, [39]-[52])
(d)Further or in the alternative to Particular (c) to this Ground, the Authority did not consider as required by law the question whether the Applicant may suffer serious or significant harm during possible detention or prison on return as an illegal emigrant. (CB 250-252, [39]-[52])
By ground 1 of his amended application, the applicant asserts that the Authority fell into error by failing to consider claims, integers of claims or material questions of fact or information.
The principles which apply in considering ground 1 are not largely in dispute. Rather, it is their application to the facts in this case that is in dispute.
The Authority was required, in conducting its review, to have regard to the material before it and to consider all relevant matters. At the time of the hearing, section 473DB(1) of the Act relevantly provided:
Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CB by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
It is well settled that a decision maker must read, identify, understand and evaluate the representations made to it.[11] The applicant relied upon the reasoning in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (‘Plaintiff M1’) in which the court refers to the need to consider representations made by the applicant. Plaintiff M1 related to the non-revocation of the cancellation of a visa under section 501CA of the Act.
[11] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17.
In Plaintiff M1, the plurality (Kiefel CJ, Keane, Gordon and Steward JJ) said:
24.Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25.It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
26.Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.
27.None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
It is also uncontroversial that in considering a protection visa claim, the Authority must consider each claim and integer of a claim made in the application and any such claim or integer of a claim which arises on the material before the Authority. As summarised by Perry J in SZSZW v Minister for Immigration and Border Protection [2015] FCA 562 at [13] – [18]:
13.… There was no issue between the parties as to the applicable principles by which the Tribunal was to undertake that task.
14. …
15.… the requirement under s 414 of the Act to “review” the decision requires that the Tribunal consider the applicant’s claims. As Allsop J (as his Honour then was) held in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 … at [42]
“To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend … and Minister for Immigration and Multicultural Affairs v Yusuf …
16.… as I recently explained in SZTDY v Minister for Immigration and Border Protection …. at [38] in determining whether a claim has been made attracting the obligation to consider it:
“A failure to consider a contention amounting to a failure by the Tribunal to exercise its jurisdiction will relevantly arise where there has been a failure to consider a ‘substantial, clearly articulated argument’ that, if accepted, might establish a well-founded fear of persecution for a Convention reason … Equally, there will be a constructive failure to exercise jurisdiction if the Tribunal fails to consider a claim which ‘squarely’ arises on the material before the Tribunal in the sense that ‘it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal’. … In either case, the constructive failure to exercise jurisdiction may properly be seen as a failure to carry out the review required by s 414 of the Act ….”
17.… the requirement to consider a claim or integers of a claim made by an applicant requires the application of an active intellectual process. As the Full Court held in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 … at [38], “that task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant …”.
18.Finally, … in forming an opinion as to whether there is a real chance of persecution for a Convention reason, past events may assist in assessing what is likely to occur in the future. As the joint judgement held in Guo at 574, “[p]ast events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence.” …
It is therefore not in dispute that if the Authority fails to consider a claim or material before it, or if it fails to deal with such a claim or material in its reasons, this could amount to an error of law. Moreover, if such an error has a reasonable prospect of affecting the decision, it may be a material error in the sense discussed in Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [29] to [31].[12]
[12] See also Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [44] to [46].
Ground 1(a)
By ground 1(a), the applicant claims that the Authority did not consider the applicant’s claim that his association with and support for the Mahajana political party, and its candidate, was due to his father’s support for that candidate as opposed to any detailed knowledge of the party held by the applicant.
The applicant submits that the applicant’s lack of knowledge of the policies of the Mahajana party as well as why he supported that party rather than other Muslim parties, was one of the reasons why the Authority did not believe the applicant in relation to his purported political involvement. The Authority set out its understanding of the applicant’s association with and support for Bharatha Lakshman and the Mahajana party at paragraphs [11] and [12] of its reasons for decision.[13] Relevantly at paragraph [14], the Authority accepted that the applicant had limited involvement with the Mahajana party and said:
14.… I accept that the applicant may have supported the party for the reasons he gave, that the party helped the applicant and his family in their business, looked after them and is genuinely committed to helping poor people. …
[13] Court book at page 245.
The Authority went on to consider the applicant’s evidence about his understanding of the policies of the Mahajana party. Relevantly, the Authority noted that the applicant was given numerous opportunities ‘at the protection visa interview to explain the ideology or beliefs of the party which he claimed to support.’ [14] The Authority then set out the applicant’s evidence given at the protection visa interview and noted that it lacked the type of detail or depth of understanding that one would have expected of someone who had been supporting the party (and its candidate) since 2005. The Authority also referred to the fact that after the protection visa interview, the applicant’s representative provided written submissions in which the applicant provided some further information about the party’s policies. In this context, the Authority noted:[15]
… It is surprising that the applicant did not give this evidence at the protection visa interview and I am satisfied that he did not know at that time that these were some of the aims of that party.
[14] Court book at page 245.
[15] Court book at page 245.

It was in this context that the Authority then concluded at paragraph [14] that it was satisfied that the ‘applicant was not a member of the party and had little understanding of its policies.’ In reaching this conclusion, the Authority had regard to the fact that the applicant had only studied until year 9. The Authority then considered the applicant’s evidence about the nature of the elections in 2011. In particular, the applicant stated that these elections were Parliamentary elections whereas, they were in fact, municipal elections. The Authority considered the applicant’s explanation for this error but did not accept that it was due to the applicant being upset or confused. The Authority concluded in this regard that:[16]
… This was a significant election in the applicant’s evidence because it was the last one with which he was involved, and it was the one during which Bharatha Lakshman was shot and killed. It is not credible that, if the applicant had indeed been involved in assisting Bharatha Lakshman during the election, he would not have recalled for what level of government the election was held.
[16] Authority Decision Record dated 5 December 2017, paragraph [16].
In essence, the applicant submits that the material before the Authority indicated that the applicant claimed to support the party, because of his, and more importantly, his father’s personal connection to the candidate and not because of his commitment to the policies of the party itself or the candidate per se. It is submitted that such a claim squarely arose on the material and, in failing to engage with this aspect of the applicant’s claim, the Authority erred. That is to say, that by focussing on the applicant’s understanding of the policies of the party, the Authority did not consider that his commitment arose from that personal connection and not the policies.
I am not persuaded by this submission. The applicant’s evidence and submissions, make it clear that whilst the applicant was initially introduced to and supportive of the party, and the candidate, due to the applicant’s father’s relationship with the candidate, the applicant states that he also ‘became very close’ to the candidate and supported the party, and the candidate, because of his own views of the candidate’s actions. For example, the applicant’s statutory declaration contained the following statements:[17]
4.In around 2005 I started helping my father with [the candidate’s] campaigning … I decided to do this because I thought that [the candidate] did lots of good things for people …
5.[the candidate’s] political party was called Sri Lanka Mahajana Party. I like this party and the things they stood for. For example, they stood for helping people , particularly the down trodden. …
…
7.… On … my father passed away and I continued to help [the candidate] after my father died. After my father died I was the only one in the family involved in politics.
[17] Court book at page 113.
At paragraph [1] of the Authority’s reasons, it noted that the applicant claimed to fear harm because of his actual and imputed political opinion, among other things. At paragraph [7] of the Authority’s reasons, the Authority set out the applicant’s claims in more detail and noted the history provided by the applicant about his father’s involvement with the party and the candidate, the applicant’s assistance to his father in the candidate’s campaign and that after his father passed away, that the applicant continued to campaign for the candidate, including assisting in a campaign for 2011 elections.
At paragraph [11], the Authority set out in some detail the applicant’s evidence about the nature of the support that he had provided to the candidate, including the fact that he was initially involved with his father, that he was not a member of the party. Relevantly, the Authority said:
11.… Although he claimed to be close to Bharatha Lakshman from 2005, the applicant stated that he did not know much about what Bharatha Lakshman was involved in, but he knew that he helped them, the applicant’s family and their business. The applicant claimed that he canvassed for Bharatha Lakshman, and at other times, he looked after his own business.
A fair reading of the Authority’s reasons, disclose that it considered the claims before it. That is, that the applicant initially was introduced to the candidate by his father, he developed a close relationship with the candidate as a result, but that he also supported the candidate, and the party, because he was of the view that the candidate did good work for the community and was not corrupt like other political parties.
In oral submissions, the applicant, after referring to the relevant material before the Authority, submitted:[18]
So, your Honour, in my submission, what was explained there in some detail was that the orientation of the relationship was a personal one …
…
… What the authority then did … in my submission, is reviewed the material, but reviewed it only through the lens of somebody whom the Authority expected to be, as it were, a party organiser.
[18] Court transcript at page 5.
I am not persuaded that this is a fair reading of the Authority’s reasons. After setting out the background to the applicant’s association with the candidate and the party, including the fact that he was initially introduced to both by his father, the applicant stated that he continued to support the candidate after his father’s death in the period from December 2006 until the candidate was killed during the 2011 elections. This is a period of almost 5 years. The applicant also stated in the material before the Authority, that, at least in part, he supported the applicant, and the candidate, due to the things that the candidate did for the community and the fact that he was not corrupt. Moreover, the applicant claimed that he was particularly close to the candidate during 2010 and 2011 and that he was involved in campaigning for him in 2011.
In his statutory declaration, the applicant stated that during the 2011 campaign, he invited the candidate to his home for parties ‘and became very close to him this way.’[19] He also says that at this time he accompanied the candidate to approximately 300 homes of local people ‘as part of his election campaign’. [20]
[19] Court book at page 113.
[20] Court book at page 114.
At paragraph 10 of his statutory declaration made on 2 September 2016, the applicant gives detail of the different factions within the Blue Party and his assessment of the candidate compared to other factions within the party. In this context, he went on to say that the candidate he supported:[21]
… was an honest and good man and does not conduct any illegal activities. [The candidate] believes in a peaceful society and wants the people to live in a peaceful country. [The candidate] wants to get rid of illegal activities, drugs and gang related crimes.
[21] Court book at page 114.
In the written submission filed on behalf of the applicant by his first representative, the applicant states that he had a well-founded fear of persecution based on, among other things:[22]
·actual or imputed support of Bharatha Lakshman and/or the Sri Lankan Mahajana Party; and
·actual or imputed views against Duminda Silva (Bharatha Lakshman’s opponent) and the person responsible for killing the candidate.
[22] Court book at pages 158 to 170.
The focus of the applicant’s submissions in so far as they related to the political opinion claims, focussed on the killing of the candidate and the subsequent risk to the applicant.
Similarly, in the second set of submissions filed on his behalf, the applicant’s representative repeated that the applicant’s father had supported the candidate, and the applicant started helping his father with the candidate’s campaigning. In the June 2017 submissions, the applicant’s representative stated:[23]
He did things like putting up posters and arranging fireworks. He did this because he thought Bharatha did good things for the people such as helping unemployed people by giving them money. He thought Bharatha would help his business. … He likes the party and was drawn to the things they stood for. … He was actively campaigning for Bharatha and was very close to him in 2010 and 2011. He was involved in an election campaign for him in 2011 and would invite him to his home for parties and accompany him to the homes of local people as part of the campaign.
…
The decision maker made an error in not accepting that the applicant was a major supporter of the Mahajana party and Bharatha Lakshman.
[23] Court book at page 232.
When the Authority’s decision is considered as a whole, I do not accept that it could be said that the Authority did not properly understand and consider the claims made by the applicant in the manner now alleged. The Authority understood the applicant claimed to have initially supported the candidate and the party because his father did. However, properly understood, it was open to the Authority to understand that the applicant claimed that after his father’s death, he continued to support the party and the candidate. Indeed, in the June 2017 submissions, the applicant’s representative took issue with the delegate’s finding that the applicant was not a major supporter of the party and the candidate. Implicit in this submission is a claim that he was in fact a major supporter of the party and the candidate. In those circumstances, it was open to the Authority to conclude that one would expect that the applicant would have a better understanding of what the party (and the candidate) stood for.
For each of these reasons, I find that the Authority did consider the claims made by the applicant and ground 1(a) is not made out.
Ground 1(b)
By ground 1(b), the applicant claims that the Authority fell into error, by failing to have regard to all the information in the entry interview of 6 January 2013. In particular, the applicant claims that the Authority failed to consider the applicant’s answer as to why he left Sri Lanka and his claim that a friend was taken and beaten and murdered and that he feared the same would happen to him.
It is submitted for the applicant that the Authority found that after the shooting, the applicant went home. It is submitted that this finding was based on the applicant’s response to a question at the entry interview and in making this finding, the Authority misinterpreted the applicant’s answer and therefore failed to consider important information that it was required to consider. In response to a question as to why he left Sri Lanka, the entry interview records the following response:[24]
tell me what happened to you personally to make you leave Sri Lanka?
i worked for the elections, i gave my vehicle and helped, the candidate who i assisted was shot dead. he used to use my vehicle and i spent money on him and i want my friend to win the election so we can have influence. … in 2011 election he stood for the election in the area. Because i was the eye witness to the shooting i was involved and now I am facing troubles and I came to this country.
who are you facing troubles from?
People are coming to my house to bother me, Dumintha’s men has a lot of thugs and followers and they harass me they come and ask for money when I am not home they bother my wife, they could abduct me and I am afraid of that.
do you have documents to prove this
yes i have them.
[24] Court book at page 56.
At paragraphs [17] to [18] of its decision record, the Authority deals with the question of whether the applicant went home after the shooting and the inconsistent evidence given about this issue. Relevantly the Authority pointed to the applicant’s statutory declaration made on 2 September 2016 in which he said:
14.[On the night of the shooting], after I went home, Duminda’s bodyguard came to my home. My mother in law went to open the door and she realised the bodyguard was under the influence of alcohol. He asked her where I was and she told him that I was not at home. He threatened my mother in law that whenever he saw me he would shoot me.
The applicant then gave evidence in his statutory declaration that after this he went into hiding as he did not believe the police could protect him. He says that he was living in three different places staying with relatives. The applicant further stated that the bodyguard continued to go to his home looking for him until he came to be aware that the applicant was in Australia.[25]
[25] Court book at page 116.
In its decision record, the delegate states: [26]
The applicant claims that Duminda Silva’s bodyguard and/or supports pursued him on the same evening as the shooting.
In the written application the applicant stated that this occurred on the same night after he went home. He stated that his mother-in-law answered the door and spoke with him and that after this he went into hiding. However, at the PV interview the applicant stated that he did not go home after the shooting and went to stay with friends. He claims he was not home when the bodyguard came to his home and that his aunt had spoken with him. At the PV interview the applicant was asked to comment on why he had provided an inconsistent account of where he was and who had spoken to the bodyguard. He responded that he had not said his aunt, he had said his mother in law. He maintained that he had gone to a friend’s home.
[26] Court book at pages 195 to 196.
The applicant repeated this claim in his statutory declaration made on 11 May 2017 where he sought to ‘correct’ an error in his 2016 statutory declaration. Relevantly, he said at paragraphs [7] to [9] of the May 2017 statutory declaration:
7.After the incident and Bharatha died I didn’t go home. I went to my friend’s house. I did this because we were so upset about what had happened. My lawyer has read to me paragraph 14 of my initial statutory declaration which says that I went home after the shooting. This is a mistake and I think it may have been a mistake with the interpreter.
8.After the shooting, I never went home again. I would speak to my wife on the phone only and I would change my sim card regularly. I was very afraid.
9.I lived in several different places after shooting. I lived in hiding in …. with friends and in Batticola with my wife’s relatives.
The applicant concedes that this issue was again revisited in the June 2017 submissions, where the applicant’s then representative stated:
… Bharatha was shot in the head and died in the ambulance on the way to the hospital. The applicant and his friends were present when the shooting occurred. … That night he went home and one of Duminda’s bodyguards came to his house. His mother in law went to the door and saw that the bodyguard was drunk. The bodyguard asked where he was and threatened to shoot him. He was afraid but he did not go to the police as he thought they could not help in this situation. He went into hiding and changed his phone number. He did not contact any of Bharatha’s people to see what was happening to him. He stayed in three different places with relatives. … Since he left Sri Lanka the bodyguard has come to his home again and told his wife that he owed him money. … they have stopped going to his house because they know he is in Australia. …
It is submitted for the applicant that whilst it was for the Authority to give appropriate weight as it considered necessary, it was important for the Authority to correctly understand what was said in the entry interview. The applicant submits that the response given by the applicant and recorded in the entry interview notes,[27] was not a statement by the applicant that he in fact went home on the night of the shooting but rather was simply a statement about where Silva’s bodyguard went on the night of the shooting. The applicant submits that the Authority placed incorrect weight on a misunderstanding of what was recorded in the entry interview on this issue.
[27] See Court book at page 56.
For the following reasons, I find that there is no proper basis on which to find that the Authority did not understand the applicant’s evidence and submissions in relation to this issue, including what was contained in the entry interview.
The Authority dealt with the apparent inconsistency about whether he was at home after the shooting as follows:
17.In the Statutory Declaration declared 2 September 2016 the applicant indicated that on the night of the shooting of Bharatha Lakshman, he went home and after he went home, Duminda’s bodyguard came to his home and his mother-in-law opened the door and told the bodyguard that the applicant was not at home. However, at the protection visa interview, the applicant denied going home and stated that he went to stay with friends. He repeated this claim in his Statutory Declaration declared on 11 May 2017 and claimed that he did not go home again and it must have been a mistake with the interpreter. The applicant claimed that after the shooting he “never went home again”.
18.I have taken into account the evidence and the explanation for the inconsistency but do not accept the applicant’s evidence that he never went home again after the shooting. I also do not accept that it was an interpretation mistake. I have significant concerns about the applicant’s truthfulness, because in the arrival interview on 6 January 2013, he stated that he was at home after the shooting. … This is a significant inconsistency about a key claim of the applicant that he witnessed the shooting and never returned home again. I do not accept that the applicant witnessed the shooting or that he never returned home again.
19.The applicant had a representative before the Department but he has a different representative before the IAA. In the submission to the IAA on 15 June 2017, his representative repeated the claim by the applicant that on the night that Bharatha Lakshman was killed, the applicant went home and one of Duminda’s bodyguards came to his house.
20.I am satisfied that the applicant continued to live in his home after the shooting and I am satisfied that he did not witness the shooting. I do not accept the applicant’s evidence that he only spoke to his wife on the telephone or that he changed his sim card regularly for the reasons that he claims. I also do not accept that the applicant was very afraid or that he lived in different places after the shooting. I do not accept that he was in hiding. I find that the applicant has fabricated his claims for the purpose of his claims for protection.
At paragraph [21], the Authority set out the applicant’s claims about what happened on the night of the shooting in detail and again stated that it did not accept that the bodyguard came to his home on that night looking for the applicant. Relevantly, the Authority went on to say at paragraph [22]:
22.… I do not accept the applicant’s explanation that they were interested in him because he had been involved in lighting the most firecrackers and that Duminda thought he was the number one supporter of the party and the applicant was always there for Bharatha Lakshman. I am prepared to accept that the applicant was a low level supporter of Bharatha Lakshman. I find it not credible that the bodyguard of Duminda Silva would have gone to the home of a low level supporter of Bharatha Lakshman on the day that Duminda Silva had been shot and was seriously wounded in the same incident that Bharatha Lakshman was shot and killed.
The Authority again referred to inconsistencies in the applicant’s claims about where he went on the night of the shooting at paragraph [26]. At paragraph [27], the Authority also referred to the fact that in the period that the applicant claimed to be in hiding, the applicant went to India three times for work and holidays and also went to the Maldives for a holiday. The Authority said that it did not accept that the applicant was in fear and in hiding at this time.

In the context of these adverse findings, the Authority concluded that the applicant, whilst a low-level supporter of Lakshman and the Mahajana party, had exaggerated his connection to the candidate and the party to strengthen his protection claims.[28]
[28] Authority decision record dated 5 December 2017, paragraph [28].
It is apparent when the Authority’s reasons are considered as a whole that the Authority’s conclusions about whether the applicant had returned to his home after the shooting were based on all of the information provided by the applicant and on his behalf. The inconsistency about whether he had gone home on the night of the shooting or indeed at any time after that arose not just from the Authority’s understanding of the applicant’s information provided in the entry interview, but also from inconsistent statements made in his own statutory declarations and submissions made on his behalf.
Moreover, the Authority also relied not only on what the applicant said on this issue, but also inferences that were reasonably open to it on the evidence about the likelihood of Silva’s bodyguards attending his home searching for him given he was at best a low-level supporter of Lakshman and the party.
The conclusions reached do not disclose a failure to consider or a misunderstanding of any material put by the applicant. It was open to the Authority to read the information provided by the applicant at his entry interview as recorded, that he did return home after the shooting. Moreover, a submission to this effect was again made on the applicant’s behalf after the protection visa interview.
On the evidence before the Authority, it was open to the Authority to identify an inconsistency between the applicant’s claims regarding whether he returned home after the shooting and to resolve the inconsistency as it did.
For these reasons, the first aspect of ground 1(b) is without merit.
The second aspect of ground 1(b) relates to a claim that the Authority did not consider information provided by the applicant in his entry interview about what happened to a friend of his. The following exchange is recorded in the entry interview:[29]
What do you think will happen to you if you return to your country of nationality (residence)?
if i go back they will come and take me away, they have taken my friend and he was beaten and murdered and the same will happen to me i will be killed in the same manner.
[29] Court book at page 61.
The applicant sought to rely upon an affidavit filed 1 August 2024. In relation to this affidavit, it was submitted for the applicant:[30]
The affidavit is put … not as evidence necessarily of the truth of that claim and not to put before your Honour necessarily as a matter of fact for your Honour to find that the applicant’s friend was a particular person with a particular name and was killed in particular circumstances but it’s put in order to establish two things. So, the first is, if there was any doubt, to clarify that the claim that’s made in answer to question 18 is about somebody different from, additional to the candidate. … But more fundamentally, it’s put before your Honour for this reason. It’s put on the basis to establish the materiality of the error by the authority in not considering this.
[30] Court transcript at page 13.
It is submitted that the Authority ought to have, but did not consider this information and in failing to do so, erred. In response to a question as to what claim the applicant says was made which was not considered, counsel for the applicant said:[31]
… in some ways … it’s difficult because at one level, the … entry interview, is not a detailed exploration of protection claims. … So, it’s brief. Yet, on the other hand, at the very beginning of the interview, the importance of the interview is explained in a way that interlocks with what might later be said in a protection claim.
…
Simply that “my friend was taken and beaten and murdered, and I am afraid the same thing will happen to me.” Now, the connection is not explained in the answer to question 18 but the claim is there. …
[31] Court transcript at pages 15 and 17.
The applicant concedes that this claim is not repeated or expanded upon by the applicant in any subsequent statutory declaration or submissions in circumstances where the applicant was represented throughout this proceeding. The applicant maintains that this is a claim which was not considered and that this failure amounts to a jurisdictional error.
I am not satisfied that the statement made in response to question 18 in the entry interview is a claim separate from the other claims made and considered by the Authority for protection. It is a statement of no more than a concern that the applicant fears that he will be killed if he were to return to Sri Lanka. The fact that this allegedly happened to a friend does not constitute a separate claim. The claim is not that the applicant fears harm because of his association to a friend who has been arrested and killed.
It is also relevant that the applicant did not expand upon this claim at any point throughout the process before the delegate or the Authority, notwithstanding having been represented as noted and having filed numerous statutory declarations and submissions outlining his claims and the evidence upon which he relied.
An applicant has the responsibility to articulate their claims and where an applicant is represented, the Authority can assume that all claims are articulated and evidence in support of the claim is presented. The statement in response to question 18 is no more than a statement that the regime has been known to beat and murder people. There was no evidence before the delegate or the Authority as to why the applicant’s friend was dealt with in this manner, and which might support a conclusion that the applicant might face a similar fate if he were to return.
When read as a whole and fairly, it is apparent that the Authority understood the applicant to claim that he feared for his life if he were to return to Sri Lanka. For the reasons that are contained in the Authority’s record of decision, it did not accept that this was the case. In these circumstances, the evidence contained in the affidavit of 1 August 2024 is not relevant as it contains material that was not before the Authority.
For completeness, I note that the applicant’s submissions might be understood to suggest that the Authority did not inquire into what the applicant meant by his answer to question 18 in the entry interview and that it ought to have done so. As submitted for the Minister, ground 1(b) is not pleaded in that way. No leave was sought to amend the ground.
But in any event, I am not satisfied that if the ground were amended in that way that jurisdictional error could be found. It is well settled that in some, albeit limited, circumstances, the failure by an administrative decision maker to make an inquiry, may render the decision ‘manifestly unreasonable’. In this case, the obligation on the Authority to make such inquiries, must be viewed through the prism of the fast-track process which regulates the Authority’s powers. As noted by the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39:
[20]The failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.
…
[25]… It may be 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. If so, a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in the decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that
[26]The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. … The second reason is that the response made by SZIAI’s solicitors to the Tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. … For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error.
In this case, similarly, the applicant has not established that there was an obvious inquiry that the Authority could and should have made about a critical fact which could readily be determined. In this instance, the applicant has not established that such an obvious inquiry exists about a critical fact which was required to be made, particularly having regard to the obligation on the Authority to make its decision on the basis of the material before it, unless circumstances exist which would warrant it to seek new information.
For each of these reasons, I find that:
(a)the second aspect of ground 1(b) is not made out as currently pleaded;
(b)leave was not sought to amend that aspect of ground 1(b) to include a claim of a failure to inquire;
(c)even if such leave were sought I would not be inclined to grant leave; and
(d)in any event, the applicant has not established that there was an obligation on the Authority to make any further inquiries in relation to the comment that the applicant’s friend had been beaten and killed on his return.
For each of these reasons, I find that the second aspect of ground 1(b) has no merit.
As such ground 1(b) is not made out.
Ground 1(c)
By ground 1(c), the applicant claims that the Authority erred by failing to consider all the relevant country information. In particular, the applicant claims that the Authority did not appropriately consider country information cited by his representative as well as the report on Sri Lanka prepared by DFAT dated 24 January 2017 (‘the DFAT report’). At paragraph [27] of the applicant’s written submission, the applicant identifies the relevant country information that he says is not considered and therefore addressed by the Authority. The applicant states that the Authority only made brief reference to allegations of torture and abuse of returning asylum seekers in Sri Lanka. Whilst the applicant concedes that the Authority did consider and refer to the DFAT report, he says that the Authority did not specifically refer to reports of torture carried out by the authorities in 2015 and 2016.
It is submitted for the applicant that the country information before the Authority was to the effect that even after the change of government in 2015, there was ‘an entrenched and pervasive culture of torture and abuse …’ by the authorities.[32] The applicant submits that the Authority did not consider this material.
[32] Applicant’s Outline of Submissions filed on 5 August 2024, paragraph 30.
The Authority set out at paragraphs [3] to [6] of its decision record the information it had before it. This includes a reference to the material before the delegate and the further submission provided by the applicant’s representative on 15 June 2017.
It is not controversial that the weight to be attributed to country information is a matter for the Authority.[33] Similarly, it is not controversial that the Authority is not required to refer to every piece of evidence in its reasons for decision. Section 473EA of the Act relevantly provided:
(1)If the Immigration Assessment Authority makes a decision on a review under this Part, the Authority must make a written statement that:
(a)       sets out the decision of the Authority on the review; and
(b)       sets out the reasons for the decision; and
(c)       records the day and time the statement is made.
[33] EGY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 796 at [53] and the cases referred to therein.
In Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16, in relation to a decision by the Tribunal, the court stated:
[33]The Tribunal is required by s 430 to set out its findings on questions of fact it considers to be material, together with the evidence and other material on which those findings were based. In these circumstances, a Court considering a challenge to the Tribunal’s decision is generally entitled to infer that any matter not mentioned in the reasons was, at the very least, not considered by the tribunal to be material to its review …
[34]The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all … The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight…
In the Minister’s written submissions at [60] and [61], the Minister addresses the relevant country information identified by the applicant and explains why its absence from the Authority’s reasons does not evince a failure to consider as claimed.
The Authority has referred to the DFAT report specifically throughout its reasons for decision. At paragraph [41] the Authority refers to ‘country information’ more generally in the context of whether the applicant might be detained and questioned on his return to Sri Lanka, although it does not specifically identify the country information relied upon. The Authority specifically refers to the risk of torture in paragraph [43] by reference to the DFAT report.
The applicant submits that the Authority’s consideration of the DFAT report in paragraph [43] must be viewed in context of its consideration of the applicant’s claim to fear harm as a returnee. This claim is considered at paragraphs [39] to [46]. In doing so, the Authority accepts that the applicant may be detained on his return and considers the treatment he is likely to receive given the findings of fact made about his particular circumstances and his profile. In this context, the Authority’s consideration of the country information and the reference to that country information in its reasons for decision is entirely appropriate.
In effect, the substance of ground 1(c) is that there was other country information which the Authority could have referred to but didn’t. Ultimately, as stated earlier, what country information the Authority refers to and what weight is to be given to it is a matter for the Authority.
Ground 1(c) does little more than invite the court to engage in impermissible merits review.
For each of these reasons, ground 1(c) is not made out.
Ground 1(d)
By ground 1(d), which is raised as an alternative to 1(c), the applicant claims that the Authority did not consider whether the applicant may suffer serious or significant harm during any possible detention or prison on his return as an illegal emigrant. It is submitted that the treatment of this issue at paragraph [43] of the Authority decision record was ‘disproportionately brief and incomplete, compared with the material which posed the question’. [34]
[34] Applicant’s Outline of Submissions filed on 5 August 2024, paragraph 32.
For reasons discussed in relation to ground 1(c), this ground seeks impermissible merits review. The Authority considered the applicant’s claim to fear harm as an illegal emigrant if he were to return to Sri Lanka at paragraphs [39] to [46]. As stated, in considering the risks of harm to the applicant, the Authority had regard to his particular profile and the interest (or lack thereof) that the authorities would have in him if he were to return.
This aspect of ground 1 also lacks merit.
For each of these reasons, ground 1 is not made out.
Ground 2
By ground 2, the applicant asserts that:
2. The Authority fell into jurisdictional error in that it erred in interpreting or applying the law.
PARTICULARS
(a)The Authority erred in interpreting or applying section 473DC of the Migration Act 1958 (“the Act”) in finding that the information in the submission to the Authority about fearing harm under the Sri Lankan Prevention of Terrorism Act (“PTA”) was “new information”. (CB 182, 234-235; CB 242-243, [6])
(b)Further or in the alternative to Particular (a) to this Ground, the Authority erred in interpreting or applying 473DD(b)(ii) of the Act, in finding the claim about fearing harm under the PTA was “credible personal information”, and this finding affected and infected the Authority’s finding that there were not exceptional circumstances under section 473DD(a) to justify considering that information. (CB 182, 234-235; CB 242-243, [6])
At paragraph [6] of its decision record, the Authority said, by reference to the submission filed on behalf of the applicant dated 15 June 2017:
6.The submission also states that the applicant is vulnerable to being detained under the Prevention of Terrorism Act upon his return.
The Authority considered this to be ‘new information’ for the purposes of section 473DD. It then considered whether it met the requirements of section 473DD such that the Authority ought to consider it as part of its review.
It is submitted that the applicant had previously raised the issue of danger under the Sri Lankan Prevention of Terrorism Act (‘the PT Act’) such that the Authority erred in considering that this was ‘new information’. In support of this submission, the applicant relies upon the references to the PT Act in the applicant’s submissions dated May 2017.[35] The reference to the PT Act and the submissions in which they appear, which I will set out in detail shortly, appear under the heading ‘Relevant country information – Impunity in Sri Lanka’.
[35] Court book at page 181 to 182.
In that context, the applicant’s representative made the following submission:[36]
[36] Court book at pages 180 and following.
In Sri Lanka, there is near complete impunity for state officers alleged to have caused serious crimes such as murder, torture, disappearances, war crimes and crimes against humanity. The very judicial framework of the country in fact promotes and accommodates impunity. …
The reason that impunity in Sri Lanka occurs to this extent is due to the virtual collapse of two institutions: the police and the prosecution branch, which function under the Attorney General. … It is a lamentable fact that the police who are supposed to protect the ordinary citizens of this country have become violators of the law.
…
In cases of enforced disappearances, torture, indiscriminate attacks, and targeted killings, successive Sri Lankan governments have consistently failed to hold accountable members of the police or military who commit serious crimes.
In its report covering the year 2015, Human Rights Watch (‘HRW’) reported that:
“the government took no significant measures to end impunity for security force abuse, including police use of torture.”
There is also particular concern in relation to the treatment the detainees that are, or end up in, police custody. In its 2015/2016 International Report Amnesty international reported that:
“[that during the year 2015] torture and other ill-treatment of detainees – including sexual violence – continued to be reported and impunity persisted for earlier cases.”
Similarly, after his visit to Sri Lanka from 29 April to 7 May 2016, the UN Special Rapporteur on Torture and other Cruel, Inhuman and Degrading Treatment or Punishment provided the following conclusion in his preliminary observations published in May 2016:
“After many interviews conducted by my team and myself at random throughout my visit with both detainees and those who have been released, I am persuaded that torture is a common practice carried out in relation to regular criminal investigations in a large majority of cases by the Criminal Investigations Department of the police. In cases where there is a real or perceived threat to national security there is a corresponding increase in the acts of torture and ill-treatment during detention and interrogation in Terrorism Investigation Division”
The Special Rapporteur further added that:
“Both old and new cases continue to be surrounded by total impunity. In addition, procedural norms that entrust the police with investigative powers over all criminal cases and, in the case of the Prevention of Terrorism Act, allow for prolonged arbitrary detention without trial, are still very much in place and open the door to – almost invite – police investigators to use torture and ill-treatment as a routine method of work.”

The submission then continued with further examples of impunity of state actors.
The applicant relies upon these submissions as a basis for arguing that a claim exists about the danger to the applicant under the PT Act. The applicant further submits that this claim was amplified in the submissions made on 15 June 2017.[37] The concept of ‘new information’ arises because of the fast-track process that was established by Part 7AA of the Act. Relevantly, section 473DB provided:
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
[37] See Court book at pages 234 to 235.
Section 473DC then set out the circumstances in which the Authority may get new information and section 473DD set out the circumstances in which the Authority may consider new information. Relevantly, section 473DC said:
(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.
Section 473DD then provided:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Ground 2(a)
By ground 2(a), the applicant asserts that the Authority erred in determining that section 473DD applied at all in relation to the PT Act claim. If the PT Act claim was not raised before the delegate, it would constitute new information for the purposes of section 473DD. When the May 2017 submissions are viewed in context, the submission relates to impunity for police abuse of power and the abuse of power by other state authorities. It is not a claim that the applicant feared harm due to being exposed to being charged under the PT Act.
The reference to the PT Act was not specific to the applicant, but rather was an excerpt from country information which was addressing the abuse of power by police in a particular context. It was not until the applicant’s representative filed the June 2017 submissions in which a claim was made that the applicant was vulnerable to being detained under the PT Act. It is that submission which the Authority had to assess as to whether it constituted new information. In concluding that it did, the Authority did not err.
This was not a claim that had been made, nor one which clearly arose, on the material before the delegate. It was a new claim and therefore properly fell within the concept of ‘new information’.
Ground 2(a) therefore lacks merit.
Ground 2(b)
In the alternative, the applicant asserts by ground 2(b) that in finding that the PT Act claim was not ‘credible personal information’ the Authority misapplied section 473DD(b)(ii). The applicant does not argue that the requirements of s473DD(b)(i) are satisfied in this instance.
The applicant’s representative made the following submission:[38]
The decision maker failed to consider that the applicant is vulnerable to being detained under the Prevention of Terrorism Act upon his return.
The Prevention of Terrorism Act means Tamils can be detained and jailed at any time with no reason given.
We respectfully submit that the prevention of terrorism act still in force is a legislation more fully described under International law as act ad hominem.
When PTA was promulgated in 1979 the Act targets a particular group of race, religion and ethnicity. The Act is totally incongruent to the International law. The government of Sri Lanka could use the legislation to subjugate the Sri Lankan Tamil population.
We respectfully submit that there is no firm commitment from the Sri Lankan Government to abolish the PTA. It is very interesting to note that time to time the Sri Lankan government kept the PTA. Still, the Sri Lankan government could enforce the provisions of the PTA to supress any agitation even if it is non-violent. Hence, there could not be a lasting political solution for the Tamils in Sri Lanka could be reached upon the abolishment of PTA in the annuls of Sri Lankan legislation. The abolishment of PTA would only pave the way for any kind of political reconciliation. We respectfully submit the DFAT report dated 24 January 2017 has not focused on these issues that are paramount to the safety of Tamil civilians and returnees from various countries who sought refuge.
Against the backdrop of the above matters we kindly urge the IAA to look into, examine, and dissect the whole issues whether the applicant could return to Sri Lanka safely or lead a life that would ensure the applicant’s safety and security.
[38] Court book at page 234.
It is settled that credible information for the purposes of section 473DD(b)(ii) is information which is not inherently unbelievable.[39]
[39]
It is also not in dispute that information will be personal information if it is about an identified person, namely the applicant in this case. To satisfy the requirements of section 473DD(b)(ii), the information must also not have been previously known to the Minister or the applicant and had it been known, it may have affected the applicant’s claim.
In ALJ18 v Minister for Home Affairs [2020] FCA 491 (‘ALJ18’), the Federal Court considered an argument in similar terms to that advanced by the applicant regarding section 473DD. Similarly, in ALJ18, the applicant, who had been represented in the proceedings both before the delegate and the Authority, raised two claims before the Authority which had not previously been raised before the delegate. In respect of both claims, they were found to have predated the delegate’s decision. In ALJ18, the Authority, in relatively brief reasons stated that it was not satisfied that the requirements of section 473DD were met. In particular, the Authority was not satisfied that the claims were credible personal information nor that there were exceptional circumstances which justified the Authority considering them.
At first instance before this court, the applicant in ALJ18 argued that the Authority’s decision was affected by jurisdictional error in one of two ways. First, it was argued that the Authority considered whether the claims were in fact true which applied a higher standard of satisfaction than section 473DD required. This error is akin to that identified in CSR16. The second basis upon which it was argued that the Authority erred, was that in rejecting the claims as not being credible information on the basis that the claims had not been previously made, incorrectly conflated the two alternative requirements in section 473DD(b)(i) and (ii).
Judge Kendall of this court found that neither ground was established. That reasoning was upheld on appeal to the Federal Court in ALJ18 v Minister for Home Affairs [2020] FCA 491. Before turning to the reasoning in the appeal matter, it is appropriate to set out the relevant aspects of CSR16 which are comparable. In CSR16, the adverse decision of the delegate was referred to the Authority for review in accordance with Part 7AA of the Act. Relevantly, after that referral, the applicant’s representative provided the Authority with further submissions. The issues which arose was whether those submissions, or some of them, constituted new information, and if they did, whether the Authority ought to consider them on the grounds that the requirements of s 473DD were met.
In CSR16, in considering the new claims made by the applicant, the Authority, after setting out the information provided, the Authority said:[40]
… I am not satisfied that this information could not have been provided to the delegate before he made his decision. Moreover, I am not satisfied that the applicant does have a genuine fear of this kind and I am therefore not satisfied that it is credible personal information. I am not satisfied that s 473DD(b)(i) or (ii) is met.
[40] CSR16 at [35].
The issue on appeal in CSR16 was whether the second last sentence misconstrued the test in section 473DD(b)(ii). Bromberg J said:
[36]… The appellant contended that “the Authority effectively pre-judged the question of whether the appellant had a subjective fear of the relevant harm”, the answer to which could only be given “once the Authority had before it the whole of the material that was relevant to the review”.
His Honour went on to consider what was meant by the term ‘credible’ information and said:
[41]In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.
[42]The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” … that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.
Applying these principles, Judge Kendall in ALJ18 found at first instance that, on a proper reading of the Authority’s reasons in that case, the Authority had not made the same error identified in CSR16. Rather at paragraph [30] Judge Kendall found that ‘whether information is credible is an evaluative judgement for the Authority to make’ and that it was open to the Authority to find, for the reasons given, that the new information was not credible personal information.
On appeal of ALJ18 to the Federal Court, Justice Mortimer (as her Honour then was) said:[41]
[34]Section 473DD(b)(ii) refers, as its text makes clear, to whether the information could have affected the delegate’s consideration of whether to grant or refuse a protection visa. The reference to “not previously known” in s 473DD(b)(ii) could be a reference to what was known, or not known, by the delegate or the applicant or both. The language could also be suggestive of a more objective and hypothetical test, without reference to the state of mind of either the delegate or an applicant. …
[35]As Bromberg J explained in CSR16 at [42], the term ‘credible’ is used in s 473DD(b)(ii) as “a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not” …
[36] I respectfully agree. …
[37]Finally, in terms of principle, it is important to recognise that the whole purpose of s 473DD is to deal with circumstances that is an exception to the usual way in which the Authority is required to review a decision. The usual way is set out in s 473DB – a review under Part 7AA is to be decided without accepting or requesting new information and without interviewing a visa applicant. Thus, the premise of s 473DD is that there is further “new information” that has not been disclosed to the delegate. The mere fact of non-disclosure is therefore not a sufficient basis for the rejection of new information, otherwise the purpose of the exception for which s 473DD provides would be frustrated. The objective of s 473DD is to take the non-disclosure as a starting point and then to require the Authority to engage in an evaluative exercise about whether there is, in accordance with the text of the provision, a sufficient justification to make an exception to the operation of s 473DB(1).
[41] ALJ18 v Minister for Home Affairs [2020] FCA 491.
Ultimately, however, and notwithstanding the brevity of the Authority’s reasons, the court agreed that the Authority did not err in the same way as in CSR16. Nor did the court accept that the Authority had conflated the requirements of section 473DD(b)(i) and (ii). Mortimer J said:
[44]… although it did so briefly, the Authority explained both why it found that para (b)(i) was not met (in substance finding the appellant could and should have told the delegate about these matters) and also why it did not find the content of the appellant’s narrative of the two events to be capable of being accepted as true.
The same analysis applies in the present case. The Authority did not make the same error as that made in CSR16. It did not determine that the claim was not true or believable. Rather, in assessing whether it was credible personal information, which is an evaluation that must be undertaken by the Authority, the Authority found that it was not. In coming to this view, it was open to the Authority to have regard to the fact that the applicant had been represented both before the delegate as well as before Authority, and that the claim made after the delegate’s decision related to matters well within the applicant’s knowledge at the time of his claim. Moreover, the Authority had regard to the fact that no explanation was given at all as to why the claim had not been made earlier.
For each of these reasons, it was open to the Authority to reach the conclusion it did for the reasons stated that the requirements of section 473DD(b)(ii) was not satisfied. Also, as in ALJ18, although brief, it is clear from the Authority’s reasons at paragraph [6] that it found that section 473DD(b)(i) was also not satisfied.
In those circumstances and having also concluded that there were no exceptional circumstances, the Authority’s approach to section 473DD was not affected by jurisdictional error.
For these reasons, ground 2 is not made out.
Ground 3
By ground 3, the applicant asserts that:
3. The Authority fell into jurisdictional error in that it made findings without a logically probative basis or was otherwise legally unreasonable.
PARTICULARS
(a)By reason of the matters set out in Particular (a) to Ground 1, the Authority’s assessment of the Applicant’s claims about the extent of his support for the political party and candidate, which the Authority accepted he did support to some extent, was legally unreasonable. (CB 113-116, [3]-[19]; 245-248, [11]-[29])
(b)Further or in the alternative to Particular (b) to Ground 1, the Authority based its decision in large part on its assessment of the extent of the Applicant’s political involvement. It found that after the shooting of the candidate whom the applicant supported, he went home and rejected his claim that he never went home. It based this finding on (sic) part on its statement that the Applicant said in his arrival interview of 6 January 2013 that he went home after the shooting, but the record of that interview does not say that he said that he went home after the shooting. (CB 56; CB 246-247, [17]-[20])
Ground 3(a) and (b) are put in the alternative to particulars (a) and (b) of ground 1 respectively.
Relevantly, by ground 3(a), the applicant submits that by failing to consider with the requisite level of engagement, the applicant’s claim that he supported the candidate and the party due to his father’s involvement with them, that the findings made by the Authority about the extent of the applicant’s support for Lakshman and his party, were legally unreasonable.
It is also submitted for the applicant that in considering whether the Authority has acted unreasonably in this sense, the statutory context is important, as well as the procedural elements of Part 7AA. That is, it is relevant that although the Authority is required to undertake its statutory task in a more truncated fashion by reference to the requirements of Part 7AA, one cannot lose sight of the fact that this process applies to determine whether the applicant satisfies the requirements for a protection visa. That is, whether the applicant has a well-founded fear of persecution for a convention reason or alternatively whether the applicant’s circumstances engage Australia’s complementary protection obligations.
It is uncontroversial that in exercising its powers, an administrative decision maker must do so within the bounds of legal reasonableness. In Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [43] – [44], the court (Allsopp CJ, Robertson and Mortimer JJ) said:
[43]The conditioning of a power such as the one in s 363(1)(b) of the Act with a requirement of reasonableness occurs because of an implication concerning parliamentary intention in the conferral of such a power. There is, as the High Court said in Li … a presumption of law that Parliament intends an exercise of power to be reasonable. …
[44]In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the Court’s supervisory powers over executive or administrative decision-making. In Li, the judgements identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process. … However, legal unreasonableness can also be outcome focussed, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li … at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. … The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li … at [105]):
“… Review by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of facts and law …”
…
[48]The standard of legal reasonableness will apply across a range of statutory powers, but the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case. As we have said, unlike some other grounds for review of the exercise of power, the reasoning process in review for legal unreasonableness will inevitably be fact dependent. That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgement for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as “intelligible justification” must involve scrutiny of the factual circumstances in which the power comes to be exercised.

Applying these principles to the present case, the issue before the court is whether there was an intelligible justification for the Authority concluding that it would have been reasonable to expect that the applicant, having claimed to have had such a close relationship with the candidate and the party, ought to have known more about the party’s policies. For the reasons discussed in relation to ground 1(a), I find that there is an intelligible justification for the conclusions reached by the Authority in this regard.
Contrary to the assertion by the applicant, the Authority was aware of the fact that the applicant initially became involved with the candidate and the party due to his father’s involvement. The Authority also noted that the applicant had limited secondary education. However, as stated above, the applicant himself in his application provided statements to the effect that in part he supported the applicant because he formed a view that the applicant did good things for his supporters and that he was not corrupt, unlike other candidates.
The Authority then was entitled to rely upon the applicant’s lack of more specific knowledge about the candidate’s policies and the objectives of the party to conclude that he was not as involved as he claimed to be. It is also worth noting that a finding that a decision maker’s reasoning is illogical or unreasonable, is not one lightly made.[42]
[42] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3, [33]-[34].
For the reasons set out above, there was an intelligible justification for the Authority’s conclusions in this regard. This aspect of ground 3 therefore is not made out.
The applicant further claims that the Authority’s finding that the applicant went home after the shooting, for the reasons advanced in support of particular (b) to ground 1, is affected by jurisdictional error in that it was legally unreasonable. The applicant submits that this finding was based in part on its assessment of the applicant’s political involvement (or limited involvement) and in part on its assessment of the applicant’s response during the entry interview that he went home after the shooting.
For the reasons set out above in dealing with particular 1(b) it was open to the Authority to conclude that there was an inconsistency between what he said in his entry interview about going home after the shooting and his later evidence. In addition, for the reasons discussed earlier, it was also open to the Authority to conclude that he had overstated his involvement with the candidate and the party.
Again, there was an intelligible and clear basis for the conclusions reached by the Authority in relation to the question of whether the applicant went home after the shooting. Indeed, as the applicant’s representative conceded in the course of submissions, the inconsistency in the applicant’s evidence about whether he did go home after the shooting or not continued even after he obtained other representation. The applicant’s evidence in this regard was inconsistent and it was reasonably open to the Authority to rely upon this inconsistency, among other things, to reject the applicant’s claim.
For these reasons, this aspect of ground 3 is not made out.
CONCLUSION
As none of the grounds of review have been made out, I make the orders that are set out in the commencement of these reasons, namely that the applicant’s application be dismissed with costs.

I certify that the preceding one hundred and forty (140) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.
Associate:
Dated: 6 February 2025

CSR16 v Minister for Immigration and Border Protection [2018] FCA 474, [40] to [43] (‘CSR16’).
See also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW [2020] FCAFC 159, [62].

File number:	MLG 2828 of 2017
Judgment of:	DEPUTY CHIEF JUDGE MERCURI
Date of judgment:	6 February 2025
Catchwords:	MIGRATION– Application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise visa – where the applicant claims that the Authority did not consider relevant or new information under section 473DD of the Act – finding that the Authority gave proper consideration to the information before it – jurisdictional error not established – application dismissed with costs.
Legislation:	Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa), 473DB(1), 473DC, 473DD, 473EA
Cases cited:	ALJ18 v Minister for Home Affairs [2020] FCA 491 EGY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 796 Hossain v Minister for Immigration and Border Protection [2018] HCA 34 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 SZSZW v Minister for Immigration and Border Protection [2015] FCA 562
Division:	Division 2 General Federal Law
Number of paragraphs:	140
Date of last submission/s:	19 August 2024
Date of hearing:	19 August 2024
Place:	Melbourne
Counsel for the Applicant:	Mr A Krohn
Solicitor for the Applicant:	Elderwood Lawyers
Counsel for the First Respondent:	Mr M Plitsch of Australian Government Solicitor
Counsel for the Second Respondent:	Submitting appearance, save as to costs

MLG 2828 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	FRZ17 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

ORDER MADE BY:	DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:	6 FEBRUARY 2025