AET20 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1062

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (the IAA) affirming an earlier decision of the first respondent (the Minister) to refuse to grant him a Safe Haven Enterprise (Class XE) (Subclass 790) visa (SHEV). For the applicant to succeed in this Court, he must establish that the IAA decision contains a jurisdictional error (Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476). This Court cannot undertake a review of the merits of the decision under review.
2. For the reasons set out below, the Court has not found any jurisdictional error in the IAA's decision. On that basis, the application cannot succeed.

1. On 13 July 2013, the applicant arrived on Christmas Island as an unauthorised maritime arrival (Court Book (CB) 127). He is a Pakistani citizen and a Pashtun Shia Muslim (CB 3, 38, 71).
2. On 9 August 2013, the applicant participated in an Irregular Maritime Arrival Entry Interview (CB 1-21). In that interview, he claimed that he left Pakistan due to a fear of harm from attacks by the Taliban, Al-Qaeda and other extremist groups (CB 10-11).
3. On 1 August 2016, the applicant was invited to apply for a Temporary Protection (subclass 785) visa or a SHEV (CB 22-23).
4. On 4 August 2017, the applicant appointed a lawyer as his authorised representative (CB 34-36).
5. On 5 September 2017, the applicant, via his representative, lodged a SHEV application (the visa) (CB 37-66). The applicant provided a statutory declaration in support of his application (CB 71-74).
6. On 14 August 2019, the applicant was invited to attend an interview scheduled for 28 August 2019 (CB 88-90).
7. On 4 September 2019, the applicant's representative provided written submissions in support of the applicant's application (CB 91-123).
8. On 31 October 2019, a delegate of the Minister refused to grant the applicant the visa (CB 127-143).
9. On 4 November 2019, the delegate's decision was referred to the second respondent, the IAA, for review (CB 145-146).
10. On 25 November 2019, the applicant's representative provided a further written submission and other documents to the IAA, including various supporting letters (CB 153-176).
11. On 16 December 2019, the IAA affirmed the delegate's decision not to grant the applicant the visa (CB 181-196). The applicant claimed to fear harm from the Taliban and other extremist groups as a result of his religion, tribe and area of origin, as well as from his father's activism as a prominent leader against extremist groups (at [15]). However, the IAA was not satisfied that he would be viewed as a threat by these groups, imputed with his father's anti-extremist views, or be discriminated against in any way (at [23], [25], [36]).
12. On 14 January 2020, the applicant lodged an application for judicial review in this Court. That application seeks review of the IAA's decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).

1. The issue in dispute between the parties relates solely to the IAA's treatment of new information under s 473DD of the Act (as it then was). Section 473DD relevantly provides that:

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.

1. On 25 November 2019, the applicant's representative wrote to the IAA attaching various documents, the following of which the IAA declined to accept (the additional documents) (reproduced from the applicant's submissions filed on 28 March 2025):

(a) an 'appointment of representative' form' (CB 177);

(b) a 'legal submission' in support of the applicant (CB 153-157);

(c) a letter to the IAA enclosing the following documents (the new information) (CB 158-176):

(i) a translated letter from [name], dated 10 October 2019;

(ii) a translated letter from [name], dated 7 October 2019;

(iii) a translated letter from [name], dated 7 October 2019;

(iv) a letter from [name], dated 18 September 2019;

(v) a letter from the president of [name], dated 21 September 2019, with a translated addendum dated 7 October 2019;

(vi) a letter from [name], dated 29 September 2019;

(vii) a translated letter from [name], dated 7 October 2019;

(viii) a news report from Dawn, dated 16 October 2019; and

(ix) a translated news report from the Daily Jhang Newspaper, dated either 10 or 16 October 2019.

1. Noting the narrow issue in dispute, the relevant paragraphs of the IAA's decision are produced in full as follows (without alteration):

[7] The new information provided with the IAA submission included a number of letters and media articles. This information is general country information and there is no indication that it contains credible personal information. These predate the delegate's decision. The applicant's representative has advised that the applicant only received these documents after the delegate's decision and therefore he was not able to give them to the Minister. The documents date from September or October 2019 and there is no information before me to indicate when or how these documents came into the possession of the applicant.

[8] I note that in the case of the English translations of letters from the original Urdu the translations are dated either 16 October 2019 or earlier, and taking into account the translator has provided an Australian Business Number on the letterhead the indications are that these were translated in Australia. As such I have some concerns regarding the assertion that these could not have been provided to the delegate before his decision, particularly noting the applicant was represented and that his representative submitted a post interview submission to the delegate which made extensive reference to country information. However even if I were to accept that this information could not have been given to the minister for the reasons discussed below I am not satisfied that there are exceptional circumstances that justify the IAA having regard to this information. The IAA submission contends that given this information is important to the assessment of the applicant's protection claims exceptional circumstances exist and the IAA should consider the information, but I have concerns as to the probative value of this information in supporting the applicant's claims.

[9] It is important to note the credible information before me that indicates the likely under­reporting of incidents in Pakistan, in part due to media self-censorship. This under-reporting was also raised by the representative in the post-interview submission and that submission quoted extensively from a range of established and reliable agencies in recounting incidents of harm to Shias in Pakistan. As noted in my assessment below I have had regard to reliable information from a range of sources which collect information from locals working in the field in Pakistan and as well as other sources, including the administrators in the tribal areas. Agencies such as the FATA Research Centre and European Asylum Support Office provide a detailed account of their collection and reporting methodology which includes a quality control process to check the authenticity of claimed incidents and expert analysis.

[10] In general the letters submitted to the IAA relate to events in the past and there is already considerable information in the country information, including that provided by the representative in the post interview submission, as to past events of attack and sectarian violence in Pakistan and considered by the delegate that. Overall the letters provided generalised comments about the history of sectarian violence and expressed concerns about the chance of ongoing attacks, make references to reference to Taliban and Daesh activity in the area, and in part proffer personal unsubstantiated opinions. In his letter a retired police officer comments that the government of Pakistan has done "nothing to protect Shias of Kurram from ... attacks" and "has not taken any significant measures to provide security" to Shias, whereas the independent and substantiated country information before me, as discussed in my assessment below, demonstrates that the Pakistani government has taken considerable and material security measures since 2014 to protect Shias in the Kurram District. The letter from the PHD candidate stated that he has worked in the field in Pakistan and has a background in journalism; however his account is substantially an historical background in the context of conflict in the tribal areas in Pakistan. This letter notes the censorship limiting the reporting incidents, but this under-reporting is information already before me.

[11] Where these letters do refer to more current incidents the information of the incidents is very basic and largely unsubstantiated. Comments about ISIS/Daesh activity are assertions of threatening calls and fears of activity, but there is little in the way of detail outlining exactly how these groups, and/or the Taliban, are acting. Furthermore it is difficult to reconcile these reports with the country information before the delegate. The letter from the social activist refers to the difficulty and dangers living in the area and noted recent incidents. The social activist writes that a former brigadier has warned him not to leave Parachinar for the last two months due to threats of targeted killing by ISIS yet, despite his letters putting forward information that it is too dangerous to travel outside the security zone in Parachinar, this activist visited Peshawar to meet with students after the death of a student and threats to other students.

[12] In the letter from the Hussainia Agency there is a reference to one specific attack occurring in the "recent month of Muharram" involving three suicide bombers, one of whom was caught alive without informing on the fate of the other two bombers and which therefore indicate the other two bombers detonated, yet there was no report of any deaths, casualties or infrastructure damage. The letter stated that the "government suppressed the issue". The letter from Tahreek-E-Hussaini also referred to an incident during Muharram involving three suicide bombers, reporting one as being caught and the other two escaping. This would appear to be the same incident and the fact that two letters from different sources have reported the same incident goes some way to authenticating this incident. These letters indicate that extremists continue to attempt to infiltrate into the Kurram District, which is information already before the delegate from a wide range of sources. But noting that one bomber was caught and that none of the three potential suicide bombers appear to have detonated and there was not report of any injuries or property damage, I am not persuaded that this information adds any substantive probative value to the assessment of the applicant's protection claims. The letter from Tahreek-E-Hussaini also refers to a number of incidents from the "near past", but as no dates are given for these incidents it is not clear when these occurred.

[13] I have considered the two media articles submitted and while these report more recent incidents I am not satisfied as to their probative value in supporting the applicant's claims. The media article from the Daily Jhang newspaper outlines the presence and apprehension of militants near a college in the Kurram District, and it is submitted their presence there is an ongoing risk to the applicant. The second article from the Dawn reports a murder in Kurram and noted that while it initiated from a personal dispute it triggered protests of a sectarian nature. The information in these articles does not indicate any harm occurring to Shias and indicate that the authorities acted in both cases to quell any potential uprising and enforce the law.

[14] I have considered the new information provided in the IAA submission but I am not satisfied that it meets the requirements of 473DD.

1. The amended application for judicial review filed by the applicant on 28 March 2025 contains one particularised ground of review as follows (without alteration):
   1. The IAA fell into jurisdictional error by failing to have regard to a mandatory relevant consideration in determining whether to consider new information pursuant to s 473DD of the Migration Act 1958 ('Act'):
      1. The IAA was required to reach a concluded state of satisfaction as to whether those documents provided by the Applicant's solicitor on 25 November 2019 which were 'new information' within the meaning of s 473CB of the Act could have been provided to the First Respondent prior to the First Respondent's decision of 29 October 2019.
      2. In determining whether exceptional circumstances justified the IAA considering the new information, the IAA's concluded state of satisfaction as to whether that new information could have been provided prior to the First Respondent's decision of 29 October 2019 was a mandatory relevant consideration.
      3. The IAA did not reach a concluded state of satisfaction as to whether the new information could have been provided prior to the First Respondent's decision of 29 October 2019.
      4. Accordingly, the IAA was unable to have regard to its concluded state of satisfaction as to whether the new information could have been provided prior to the First Respondent's decision of 29 October 2019 in determining whether exceptional circumstances justified the consideration of the new information.
      5. The IAA therefore failed to have regard to a mandatory relevant consideration in determining whether exceptional circumstances justified the consideration of the new information.
      6. The IAA's error was jurisdictional in circumstances where the new information was relevant to the central issue for determination by the IAA and, had it had regard to that new information, its ultimate decision could realistically have been different.
2. The applicant also filed an affidavit with his original judicial review application on 14 January 2020 which was taken as read and in evidence at the hearing on 10 April 2025. That affidavit annexed a copy of the IAA's decision.
3. The materials before the Court include a Court Book numbering 196 pages (marked as Exhibit 1), an amended application and written submissions filed on behalf of the applicant on 28 March 2025, and written submissions filed on behalf of the Minister on 4 April 2025.

1. As outlined above, the amended application for judicial review contains one particularised ground, namely, that the IAA failed to have regard to a mandatory relevant consideration in determining whether to consider new information. The crux of the applicant's argument is that the IAA failed to reach a concluded state of satisfaction in respect of the requirement in s 473DD(b)(i) that the new information could have been provided to the Minister prior to the decision made by his delegate.
2. Section 473DD is set out above at [15]. Since the High Court's decision in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494 (AUS17), it is now well established that the IAA is required to assess any new information an applicant may wish to be considered by the IAA "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)" (AUS17 at [11]). However, compliance with this assessment is a matter of substance rather than form (see CRM18 v Minister for Home Affairs [2019] FCA 665; CPP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 199). Furthermore, there is no requirement that the IAA engage in a "formulaic consideration" of s 473DD (APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79]).
3. In this matter, the applicant contended that the IAA's finding in respect of s 473DD(b)(i) was inconsistent with the principles established in AUS17.
4. The applicant accepted in written submissions that the IAA considered the limbs of s 473DD in the order prescribed by AUS17. However, the applicant contended that the IAA was required to, but did not, reach a concluded state of satisfaction with respect to the application of s 473DD(b)(i). The applicant accepted at the hearing that the IAA was not required to use a "formal or magic form of words" but contended that its failure to reach a conclusion meant that the IAA was incapable of taking into account a conclusion in assessing s 473DD(a), and accordingly, failed to undertake the overall assessment required by s 473DD.
5. The applicant submitted that the IAA's assessment of s 473DD(b)(i) was limited to noting the date of the new information and inferring that such information had been translated in Australia (although the IAA also noted that there was nothing before it to suggest how the new information had come into the possession of the applicant). It was contended that whilst the IAA expressed "some concerns" about the fact that the documents could not have been provided to the delegate before his decision, the IAA did not go on to expressly conclude this assessment. Counsel for the applicant argued that when a decision-maker uses evasive language such as "expressing concerns" and "expressing serious reservations", it leaves doubt about the conclusion of what those concerns represent. In support of this, the applicant relied upon CLI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1082 (CLI19) where Rares J held (at [29]-[30]):

[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.

1. In the Court's view, CLI19 does not assist the applicant's argument as it turns upon a finding that the new information satisfied s 473DD(b)(ii) (in that it was capable of being credible personal information) but that this was affected by the IAA's serious reservations in respect of the veracity of that new information. The IAA's finding in this matter does not reflect a similar process. The IAA's reasoning is clearly focused on the question of whether the new material could not have been provided prior to the delegate's decision. That was the correct enquiry.
2. The applicant's primary contention was that the IAA did not express a state of satisfaction as to the application of s 473DD(b)(i), nor did it make a finding which would necessarily foreclose the application of that section. The applicant accepted that the IAA did conduct some assessment pursuant to s 473DD(b)(i) but that its reasons disclosed no express 'outcome' to that assessment. Counsel for the applicant noted this was problematic in circumstances where the outcome of s 473DD(b) analyses is a mandatory relevant consideration for the analysis of s 473DD(a), although he did accept at the hearing that the IAA had addressed matters which might tend to suggest against the satisfaction of 473DD(b)(i) but was not conclusive in this respect.
3. An error of the kind in AUS17 can only be averted, in the applicant's submission, if the outcome of the IAA's s 473DD(b)(i) assessment could be read on the face of its reasons, but one must exercise caution so as to not read in findings that have little to no textual support, or that demonstrate inconsistency with the IAA's actual expression.
4. Contrastingly, the Minister submitted that the only reasonable interpretation of paragraphs [7], [8] and [14] of the IAA's decision is that the IAA did in fact reach a finding that s 473DD(b)(i) was not satisfied. The IAA observed that the information was translated in Australia, and that it had "some concerns regarding the assertion that these could not have been provided to the delegate before his decision, particularly noting the applicant was represented and that his representative submitted a post interview submission to the delegate which made extensive reference to country information". In the previous paragraph, the IAA considered s 473DD(b)(ii), so the statutory language used, and the sequence in which it addressed the issues identified, closely align with how s 473DD is structured and it should therefore be inferred that the IAA was addressing s 473DD(b)(i).
5. Counsel for the Minister reiterated that there was no error in the IAA's approach for making findings against both limbs, both of which insulated against the material jurisdictional error, as there should be no inference drawn with respect to whether there was a concluded view about s 473DD(b) just because there was also a later finding about exceptional circumstances.
6. In respect of the IAA's analysis of s 473DD(a), namely, "...even if I were to accept that this information could not have been given to the Minister...", the applicant submitted that the use of the present second conditional tense was grammatically incoherent if the IAA had reached a conclusion for s 473DD(b)(i). The IAA's use of the second conditional tense instead of the past perfect conditional (i.e. "even if I had accepted") indicated, in the applicant's view, that the IAA had not yet formed a conclusive view on s 473DD(b)(i).
7. The Minister submitted that the IAA clearly made an adverse finding against s 473DD(b)(ii). In the Minister's view, the IAA's statement that it had "some concerns", followed immediately by "[h]owever even if I were to accept", indicates that it made an adverse finding against s 473DD(b)(i) but then made findings in the alternative. That is, it considered that even if, contrary to its own finding, s 473DD(b)(i) was satisfied, it would have found that there were no exceptional circumstances to justify consideration of the new information in any event. This was the only reasonable interpretation open to the IAA, in the Minister's view, because the IAA expressly recorded that the new information pre-dated the delegate's decision and the applicant's explanation for why he was unable to give the information to the Minister before the decision, and then noted there was "no information before me to indicate when or how these documents came into the possession of the applicant".
8. The Minister contended that the applicant's focus on the second conditional tense ("even if I were to accept") as opposed to the third conditional tense ("even if I had accepted") reads the IAA's decision unfairly where the tenses identified communicate the same idea and is an adverse finding in the alternative. The use of the term 'however' refers to a counterfactual scenario where the IAA must have formed the view before using the word 'however', in that it rejected the applicant's contention that the new information could not have been provided prior to the delegate's decision.
9. With great respect to counsel for the applicant, the Court considers that this ground clearly invokes the well-known caution against over-zealous scrutiny of decisions repeated in cases such as Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. In the Court's view, there is no ambiguity in respect of the IAA's language. The Court agrees with the Minister that it is abundantly clear from the impugned sentence that the IAA had made a finding that it did not accept the new information could not have been given to the Minister prior to the decision of his delegate. It then went on to make a counterfactual finding that, if it had found otherwise, it would nevertheless have gone on to find there were not exceptional circumstances. There is nothing impermissible about such an approach.
10. The applicant accepts that the IAA undertook an appropriate assessment of all the relevant factors relating to the question of whether the new information could not have been provided to the Minister prior to the delegate's decision. In particular, the IAA considered the dates of the English translations, the indication that the translations were undertaken in Australia, the fact that the applicant was represented, and that his representative had provided a post-interview submission to the delegate which made detailed reference to country information. Those were all cogent reasons for underpinning a finding that this was not material which could not have been provided to the delegate. The applicant's sole concern is with the IAA's expression that it held "some concerns". In the Court's view, though, this is not an equivocal finding. The IAA listed in some detail all of the concerns it had. The phrase "[h]owever even if I were to accept" immediately follows that itemisation. The use of the word "however" is a clear indicator that a finding has been made. In the Court's view, it has been used to emphasise that an alternative finding could not have changed the IAA's view. That presupposes the existence of an original finding. The Court accepts that, following the analysis set out above, the IAA made a finding that it was not satisfied the new information could not have been provided prior to the delegate's decision. It then went on to expressly find that, even if it had not made that finding, it would not have accepted that there were exceptional circumstances to justify considering that material.

1. Given the Court has found that the IAA did not err in the manner contended by the applicant, it is unnecessary to consider whether such an error would have been material.
2. Nevertheless, the Court accepts the force of the Minister's submission that the outcome would inevitably have been the same had there been no error under s 473DD(b), given the Authority also made strong and determinative findings that there were no exceptional circumstances to justify considering the new information, and also that the new information added no probative value to the applicant's claims. There is simply no realistic possibility that the IAA would have made a different decision on accepting the new information. Furthermore, even if it had accepted that new information, it is abundantly clear that it could not have affected the IAA's ultimate conclusion.
3. No jurisdictional error arises.

1. The application for judicial review, supporting affidavit and additional submissions advanced by the applicant at the hearing have failed to identify any jurisdictional error.
2. Accordingly, the application is dismissed.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.