GHZ18 v Minister for Immigration and Citizenship

Case •

[2025] FedCFamC2G 1396

•

27 August 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

GHZ18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1396

File number(s): SYG 3381 of 2018
Judgment of: JUDGE EGAN
Date of judgment: 27 August 2025
Catchwords: MIGRATION LAW – Where the Authority was “not satisfied” that there were exceptional circumstances justifying the consideration of new information – where the Authority failed to properly carry out its role when considering whether there were exceptional circumstances justifying its consideration of new information – jurisdictional error established – application granted.
Legislation: Migration Act 1958 (Cth), s. 5H(1), s. 473DD, s. 473DD(a), s. 473DD(b)(ii)
Cases cited:

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

BTK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 658

CLI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1082

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

FGI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 57

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150
Division: Division 2 General Federal Law
Number of paragraphs: 23
Date of last submission/s: 19 August 2025
Date of hearing: 1 July 2025
Place: Brisbane
Counsel for the Applicant: Mr M. Jones of King’s Counsel
Solicitor for the Applicant: Allens
Solicitor for the First Respondents: Mr Pasas, Clayton Utz  
The Second Respondent: Submitting appearance, save as to costs

ORDERS

SYG 3381 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

GHZ18

Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE EGAN

DATE OF ORDER:

27 AUGUST 2025

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to “Minister for Immigration and Citizenship.”

2.The name of the second respondent be amended to “Administrative Review Tribunal.”

3.The Amended Application filed on 3 June 2025 be granted.

4.A writ of mandamus issue directed to the Administrative Review Tribunal requiring it to determine according to law the Applicants’ Application for Review of the Second Respondent’s decision, and that the matter be remitted to the Administrative Review Tribunal for re-determination.

5.For the purpose of the Administrative Review Tribunal again re-determining the Applicants’ application, that it be constituted by a different member than the member of the Administrative Review Tribunal who handed down the decisions on 8 November 2018.

6.The First Respondent pay the Applicant’s costs of and incidental to the Application

for Review, such costs to be as agreed between the parties, or failing agreement, as assessed pursuant to the provisions of Rule 22.02(2)(c) of the Federal Circuit and Family Court of Australia (General Federal Law) (Division 2) Rules 2021.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE EGAN

  1. The applicant is a citizen of Bangladesh who arrived in Australia on or about 25 December 2012.

  2. On 11 August 2016, the applicant applied for a Safe Enterprise Visa (SHEV).

  3. On 25 June 2018, a delegate of the Minister refused to grant the visa. The matter was referred to the Immigration Assessment Authority (the Authority) for review.

  4. At [8] of its reasons, the Authority set out the applicant’s claims as follows:

    The applicant’s claims can be summarised as follows:

    •For several years from around the time he completed school in 2003 until January 2007, when he fled Bangladesh, he was a BNP supporter.

    •AL workers broke the leg of a relative that he associated with and who was a BNP supporter.

    •He was beaten by AL workers when he was returning from a party meeting and when he participated in a BNP rally.

    •He received death threats and the AL tried to kill him.

    •The police would not allow him or his family to lodge a complaint about the AL workers. He fled to the capital Dhaka but AL workers there identified him and threatened to kill him.

    •He fears if he returns to Bangladesh that AL workers and the AL government will kill him.

    •At the SHEV interview he claimed that his father had been a BNP member since 1991 and that he became a BNP member in 2006.

    •At the SHEV interview he claimed AL leaders and workers threatened him and were physically violent towards him because he was a well-known BNP local leader and member.

  5. At [9-10] of its reasons, the Authority duly set out what constituted a person as a refugee under the provisions of s. 5H(1) of the Migration Act 1958 (Cth) (the Act), and what constituted a well-founded fear of persecution under the Act.

  6. On 8 November 2018, the Authority handed down written reasons affirming the decision of the delegate.

  7. On 4 December 2018, the applicant filed an Originating Application for Review of the decision of the Authority.

  8. At the time of the hearing, the applicant relied upon an Amended Application for Review filed on 4 June 2025.

    Grounds of Review

  9. The Grounds of Review as set out in the Amended Application for Review were as follows:

    Ground 1: Misapplication of s. 473DD

    1.The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims Authority erred in interpreting or applying s. 473DD of the Migration Act 1958. In particular, the Authority found that the Applicant had provided new information which was credible personal information, yet failed to assess whether this amounted to exceptional circumstances under s. 473DD(a).

    Ground 2: Legal Unreasonableness, Irrationality or Illogicity

    2.The Tribunal failed to consider my claim on the basis of my political opinion against the Awami League Party as an independent claim Authority erred in making adverse credibility findings on a critical issue that was unreasonable, irrational or lacking in probative basis. In particular, the Authority determined that the Applicant was not a member of the BNP nor possessed a position of prominence in his local branch, yet did so without any evidentiary basis or for irrational reasons.

  10. Section 473DD of the Act relevantly provided as follows:

    Section 473DD

    Considering new information in exceptional circumstances

    For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

    (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

    (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

    (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

    (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

  11. At [4] – [7] of its reasons, the Authority referred to two documents which accompanied further submissions made to it after the handing down of the delegate’s refusal decision – namely a medical certificate dated 14 July 2018 and a document which purported to be a BNP certification dated 20 October 2006. Those reasons were as follows:

    4. On 18 July 2018 the applicant's representative provided to the IAA a document he described as a submission but which is written in the first person and is more akin to a further statement by the applicant. Appended to the statement were two documents - a medical certificate from a doctor dated 14 July 2018 stating that both of the applicant’s legs were injured in 2006 and that he was operated on and treated by the doctor for two and a half months; and a BNP certification dated 20 October 2006 stating the applicant was the Assistant Secretary of ‘Mouli Union Word’. Apart from the matters discussed below, the statement restates some of the applicant’s claims that were before the delegate and addresses the delegate’s decision and issues arising, and as such I regard it as argument rather than information and have considered it.

    5. The statement includes several new claims: that the applicant held the position of BNP cochairman, that his duties included him maintaining unity, increasing power, recruiting members, arranging, and budgeting for meetings at the local level. The supporting BNP certification on its face pre-dates the delegate’s decision by over eleven years. It contains personal information about the applicant. It is contended that the applicant did not provide the documents or raise these claims earlier because of his low level of education, because he was scared and nervous and unprepared following the boat journey to Australia, because the interpreter at the entry interview was a Rohingya Bengali interpreter who he was uncomfortable with, and because he was scared the information would be passed to the AL dominated Bangladesh government.

    6. I have considered but am not satisfied by the explanations provided by the applicant for not having raised the new claims and provided the certification earlier. I have listened to the audio recording of the entry interview that was held around two and a half weeks after the applicant’s arrival. The applicant confirmed he understood and had no objection to the interpreter used during that interview. And neither the applicant nor his migration agent have identified any specific interpreting errors or explained why in particular the applicant felt awkward responding via that interpreter. The applicant appeared to comprehend the questions asked of him and answered them promptly and confidently. In my view he did not sound scared or nervous. While I accept the applicant may not have graduated from high school, I note he claimed to have completed a number of years of high school, which I accept was the case. And having undertaken limited schooling is a circumstance faced by many applicants. As is feeling worried that the information they have provided may be shared with the government of their home country. However I note that the applicant had already disclosed at the entry interview that his relative was active with the BNP and that he had had some involvement with the party, in that he had attended some BNP meetings with his relative. It seems doubtful in these circumstances that he did in fact hold such a fear about disclosing his now claimed greater involvement with the BNP. Also it is not apparent when he or why he decided he was no longer fearful of disclosing the information. Furthermore many of the reasons the applicant has provided attempt to explain why these matters were not raised in the entry interview but they do not explain why he did not raise the claims and provide the certification in the years following. In correspondence sent prior to the SHEV interview, and at the SHEV interview, the Department emphasised to the applicant that it was his responsibility to raise all his claims and provide evidence in support of them and that if his application was refused by the delegate he may not have another opportunity to provide further information unless there were exceptional circumstances. Furthermore there seems to be an internal inconsistency in the new claims. In the statement the applicant refers to being a BNP ‘cochairman’ whereas the certification lists his office as BNP ‘Assistant Secretary’. I do not accept the explanations provided, and in the circumstances there are real questions as to the credibility of the material now sought to be introduced. I am not satisfied that there are exceptional circumstances to justify considering the new information.

    7. In relation to the medical certificate, I note it post-dates the delegate's decision and to that extent could not have been provided to the Minister before the Minister made the decision under s.65. However the injury to the applicant it discusses pre-dates the delegate's decision by around twelve years. While the certificate contains personal information about the applicant, in my view the information is of little probative value. The doctor does not offer an opinion as to how the applicant’s injury might have occurred or whether the injury is consistent with the applicant having been beaten as he claims. There also appears to be a discrepancy between the letterhead on the certificate which relates to one hospital in Dhaka and the stamp of the doctor who signed the certificate which concerns a different hospital, which seems to strongly suggest that the certificate is fraudulent. I am not satisfied that there are exceptional circumstances to justify considering the new information.

  12. The Authority found that it was not satisfied that there were exceptional circumstances justifying its consideration of such documents. It was submitted on behalf of the applicant that the Authority had failed to “ … accord with the procedure mandated by the High Court …” in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 at [11], [12] and [18] where it was held, per Kiefel CJ, Gageler, Keane, and Gordon JJ as follows:

    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 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).

    …

    18. Plainly enough, the Authority assessed the letter against the criterion specified in s 473DD(b)(i), finding that criterion not to be met. It went on to assess the letter against the criterion specified in s 473DD(a), finding that criterion not to be met. There being nothing to suggest that the letter was incapable of being assessed by the Authority to meet the criterion specified in s 473DD(b)(ii), what the Authority should have done, but evidently did not do, was assess the letter against the criterion specified in s 473DD(b)(ii) and then take that assessment into account in going on to assess the letter against the criterion specified in s 473DD(a).

  13. Further reliance was placed by Senior Counsel for the applicant on the judgment of Rares CJ in CLI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1082 at [32], a judgement to which the Court will later refer.

  14. Of significance when considering the threshold for what was meant by the word “credible” was the judgment of Bromberg J in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41] [1] where His Honour held as follows:

    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.

    [1] The judgment of Bromberg J was upheld as the correct construction of s. 473DD(b)(ii) by a majority of

    the Full Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v

    BTW17 (2020) 294 FCR 150 at [37], [56] – [62], and at [75] – [76] per Mortimer and Jackson JJ.

  15. In BTK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 658 at [49] – [51], Perry J considered that the requirement in s. 473DD(b)(ii) that the new information be “credible” sets a low bar. Her Honour found as follows:

    49. Secondly, as the appellant submitted, expressing doubts about the reliability of information is not the same in terms or in substance as a finding that information is not credible.  As Bromberg J, for example, stated at [41]-[42] in CSR16: 

    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.

    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” (VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.

    (Emphasis added.)

    50. Thus, his Honour held that the Authority had fallen into jurisdictional error in that case by deciding whether the information was true or believed in applying the s 473DD(b)(ii) criterion, and thereby imposed a higher standard of satisfaction than that imposed by the statutory criterion: at [43].

    51. Justice Bromberg’s approach was endorsed by Mortimer J (as her Honour then was) and Jackson J in Minister for Immigration, Citizenship, Migrant Servies and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 294 FCR 150 at [75]. As their Honours explained in BTW17 at [75], it is the decision as to whether the information has the character of being “capable of being believed … as well as the character of being ‘personal’ to the visa applicant, which is to be made at this procedural stage, for the purpose of deciding what the scope of the review material should be, and whether there should be a departure from the primary rule.” It follows, as the appellant emphasised, that the requirement in s 473DD(b)(ii) that the new information be “credible” sets a low bar.  In order to reject new information on the ground that it is not credible, the Authority must find that the new information is not even capable of being believed; mere doubts about its reliability will not suffice. 

  1. Having regard to the above authorities, and as to Ground 1 of the Amended Application for Review, the Court finds that the Authority failed to perform the procedural duty imposed on it by s. 473DD, firstly because it did not assess whether the new information was capable of being accepted as truthful (or accurate or genuine), and secondly, because it necessarily failed to assess the new information against the s. 473DD(b)(ii) criteria, and then take that assessment into account when assessing whether there were exceptional circumstances justifying consideration of the new information under s. 473DD(a). It was not enough for the Authority to merely find in respect of each element of the new information that it was not satisfied that exceptional circumstances existed justifying its consideration. [2]

    [2]           CLI19 at [32]

  2. In the light of the above finding, the Court rejects the submissions made on behalf of the first respondent that in respect of each aspect of the new information, it ought to be found that the Authority was entitled to find that there were no exceptional circumstances justifying consideration of such information because both were of so little probative value as to render them incredible. The Authority had failed to follow the procedure as set out in AUS17, the result being that the Authority had failed to have regard to a mandatory relevant consideration in the purported application of the criterion in s. 473DD(a).

  3. Further, the Court respectfully notes that the analysis of Rares J in CLI19 at [28] – [32] is at odds with that of O’Callaghan J in FGI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 57 at [26] – [28] inclusive. The respective analyses were as follows:

    Rares J

    28.The High Court has not expressly decided that, despite the apparent importance s 473DD has in imposing a procedural duty on the Authority to determine whether or not to consider new information using the process identified in AUS17 [2020] HCA 37; 269 CLR 494, it does not have to give reasons for such a decision. Whether that is the necessary result of its reasons in BVD17 [2019] HCA 34; 268 CLR 29 at 39 [16], as AAL19 [2020] FCAFC 114; 277 FCR 393 suggests, it need not be decided here. That is because the Authority did give reasons for its decision under s 473DD. The question is whether those reasons, fairly read, reveal jurisdictional error in its approach, or allow the Court to infer that something went wrong in its evaluation so as to warrant granting relief: Avon Downs 78 CLR at 360.

    29.The Authority stated in the third sentence of par 12 that it had “serious reservations with regards to the veracity of the document and the claim”. That was a preliminary evaluation under s 473DD(b)(ii) that the warrant and new claim were capable of being (even if unlikely to be) found to be credible, were they considered as new information in the Authority’s review of the delegate’s decision. That is, while the Authority had “serious reservations”, it could not dismiss the warrant and new claim as being incapable of being found to be truthful, accurate or genuine (ie, “credible personal information”), were they to be considered in a review of the delegate’s decision with all of the material available to it.

    30. I am of opinion that in stating the conclusion in par 12 (viz: that it had “serious reservations with regards to the veracity of the document and the claim”), the Authority was not making a qualitative evaluation of the kind that it would have to make in a final decision, were it to later take those matters into account in its consideration of all of the other information before it. Rather, by excluding the warrant and the new claim from its review, after finding it to be “credible” for the purposes of s 473DD(b)(ii), the Authority precluded itself from considering the new information.

    31. The new information, being the warrant, and the appellant’s solicitor’s submissions in relation to it, if taken into account in the review and ultimately found to be credible, could have made a material difference to the outcome, as the Minister accepted. Accordingly, the Authority erred because it failed to factor into account whether the new information and any other relevant considerations amounted to exceptional circumstances in accordance with s 473DD(a).

    32. The Authority’s finding was that the new information satisfied s 473DD(b)(ii), albeit that it had “serious reservations” about it. But, by failing to factor that finding into any subsequent assessment of whether that new information satisfied it that there were exceptional circumstances within the criterion in s 473DD(a), the Authority made a jurisdictional error: AUS17 269 CLR at 502 [11]; see [21] above.

    O’Callaghan J

    26.The appellants’ primary contention on appeal was that, by expressing “doubts” as to the genuineness of the new information, the IAA did not properly assess whether the information was “credible”, that is, whether the information was “capable of being believed”. See Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 171 ALD 477 at 493 [75] (Mortimer and Jackson JJ). The appellants submitted that the expression of doubts did not amount to a finding that the new information was not capable of being believed.

    27. I am unable to accept that contention. It seems to me that it posits a distinction without a material difference. But in any event, it is well established that administrative decisions are not to be “scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”. A court should not be concerned with “looseness in the language” or “unhappy phrasing” of a decision maker, and reasons are “not to be construed minutely and finely with an eye keenly attuned to the perception of error”. See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

    28.The IAA did not need to engage in a “formulaic consideration” of s 473DD(b), and there is no error if it can be inferred from the IAA’s reasons that the relevant assessment against the s 473DD criteria occurred. See APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79] (Markovic J). The IAA was not obliged to use the precise words of the Act or legal tests, and in my view, its expression of “doubts” about the genuineness of the information was a finding that the information was not credible under s 473DD(b)(ii).

  4. The two differing approaches are practically irreconcilable. The Court respectfully adopts the analysis of Rares J as being more consonant with the majority judgement of the High Court in AUS17.

  5. In the light of the above findings, the Court further finds that the Authority erred in the way in which it carried out its function when reviewing the decision of the delegate, and that such error was jurisdictional in nature.

  6. Ground 1 of the Grounds of Review is accordingly granted. It is unnecessary, in the light of such finding, to deal with Ground 2.

  7. And it is so ordered.

  8. The Court will hear the parties as to costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated: 27 August 2025


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