AXC18 v Minister for Immigration and Citizenship [2026] FedCFamC2G 111

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. This is an application for judicial review of a decision of the second respondent, which was then the Immigration Assessment Authority (Authority), made on 5 February 2018. The Authority affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Safe Haven Enterprise (subclass 790) visa (visa) pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
2. The application for review was first filed with the Court on 27 February 2018. An amended application was filed with the Court on 31 October 2024.
3. The final hearing of the amended application for judicial review was first heard before Her Honour Judge Kirton of this Court on 3 December 2024. Judge Kirton retired from the Court before delivering reasons for decision or pronouncing final orders on the amended application.
4. By order of Chief Judge Alstergren made by consent on 27 October 2025 the parties agreed that the amended application be determined on the papers pursuant to r 17.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules) and that the transcript of the final hearing on 3 December 2024 be marked as an exhibit in the proceeding.
5. These reasons for judgment follow the Court's consideration of the contents of the Court Book prepared on behalf of the Minister, the outline of written submissions filed by the applicant on 31 October 2024, the outline of written submissions filed on behalf of the Minister on 18 November 2024, the list of authorities prepared by and filed on behalf of the Minister dated 27 November 2024 and the transcript of the hearing before Judge Kirton on 3 December 2024.
6. On 27 October 2025, Chief Judge Alstergren ordered by consent that the parties may, within 14 days of receipt of the transcript of the final hearing on 3 December 2024, make further written or oral submissions. The Court file reflects that the parties were provided with a copy of the transcript on 27 October 2025 and neither party has elected to file further written submissions.
7. Reference in these reasons to 'CB' pages are references to the Court Book that was filed by the solicitors for the Minister dated 6 February 2019.

1. The applicant is a citizen of Sri Lanka who arrived in Australia on 18 November 2012 as an unauthorised maritime arrival. He is of Tamil ethnicity and Hindu religion.
2. On 28 January 2013, the applicant participated in an Irregular Maritime Arrival Entry Interview at Wickham Point Immigration Detention Centre, assisted by a Tamil interpreter (CB 1-18). The applicant is recorded as stating in that interview that the reason he left Sri Lanka was because he was 'having problems with armed groups'. He named these groups as the Karuna Group and the Sri Lankan Army (SLA). He also claimed that in September 2012 he was questioned by the Criminal Investigations Department of the Sri Lankan Police (CID) and then, a week later, detained for a day and assaulted by members of the Karuna Group and the SLA (CB 13). The applicant claimed that if he was to return to Sri Lanka, 'They will shoot me to death. I will lose my life' (CB 17). He decided to flee Sri Lanka shortly thereafter and arranged passage by sea with the assistance of his brother-in-law (CB 15-17)
3. On 21 December 2015, the applicant was invited to apply for the visa or a Temporary Protection (subclass 785) visa (CB 102-7).
4. On 6 December 2016, the Department of Immigration and Border Protection received the applicant's visa application, which had been prepared by his solicitor (CB 119-244). Attached to the application were signed 790 Part B and Part C forms (CB 120-156), a form 790 attachment (CB 157-162), a signed Form 956 attachment (CB 114-8), certified copies and translations of supporting documents (CB 183-244) and a statutory declaration affirmed by the applicant and dated 11 October 2016 (CB 163-182). The Declaration further particularised the applicant's family background, as well as his claimed reasons for leaving Sri Lanka and for seeking protection in Australia. Those reasons can be summarised as follows:
   • The applicant's mother died when he was born, due to medical complications during the birth (CB 164).
   • The applicant grew up in a mainly Tamil village. Between 1989 and 1990, this village was within the 'LTTE area' (CB 164).
   • The applicant's mother's cousin was a leader and a 'major' in the LTTE (CB 164).
   • In 1990, the applicant and his siblings were forced to relocate to a nearby village, after the Government attacked his home village (CB 164).
   • About a month later, when the applicant was eight years old, the SLA killed his father, uncle and mother's cousin (CB 164-5).
   • The applicant and his siblings remained in the nearby village for about three years, staying in a refugee camp and being cared for by their aunt. During this period, the applicant claimed to have witnessed violence perpetrated against Tamils by the SLA prompting 'many' of the applicant's cousins to join the LTTE. The applicant stated that he was too young at this point to join (CB 165-6).
   • From 1993 to 1998, the applicant was raised in an orphanage (CB 166).
   • From 1998 to 2001, the applicant was detained, questioned and beaten 'in excess of 10 times' by an armed group called the 'Rasi Group' (CB 167). He also observed conflict between the Rasi Group and the LTTE. He was also a witness to the assassination of the leader of the Rasi Group (CB 167).
   • In August 2001, the applicant returned to his home village to stay with his aunt and sister (CB 167).
   • In about November 2001, the applicant was taken to an army camp, interrogated and physically assaulted, threatened and restrained ('kicked' multiple times, hit with a stick and forced to stare into the sun for two hours) by the Special Task Force (CB 167-8). The applicant was asked repeated questions about whether his father supported or gave money to the LTTE and the location of his mother's cousin's family (CB 168). The applicant was released but claims to have been taken to the army camp a further ten-to-twenty times to verify his identity between 2001 to about August 2002. On these occasions he was not harmed or tortured by the SLA (CB 169).
   • In about August 2002, the LTTE returned to the applicant's home village after the Government announced an amnesty to discuss peace talks. From late 2002 to 2004, the LTTE tried to 'manage' the applicant's village and attempted to recruit young Tamil males (CB 170).
   • In November 2004, the applicant began working for an NGO which provided resources and support to local villages. In 2005, following the destruction of the 26 December 2004 tsunami, the applicant began organising the reconstruction of affected toilet facilities in the area. The local leader of the LTTE, who now had effective control of the applicant's home village, requested that the applicant organise the construction of toilets and other buildings in areas he controlled. The applicant was offered a bribe for this work, however he refused because he was only able to support tsunami affected areas and all constructions required prior approval from his employer. Nevertheless, for fear of being killed if he failed to cooperate, he relented to disclosing his organisation's construction and financial records to the leader (CB 171-2).
   • From about February 2006, the applicant began supporting his brother's (it is understood that this individual is actually the applicant's biological cousin: CB 206; CB 647 [12]; 653-4 [39]-[42]) election campaign by handing out pamphlets, doing announcements with a microphone and speaking with Tamil people in local villages. His brother won the election in May 2006 and stood as the representative for the local division for the Tamil National Alliance (CB 173).
   • After the election, in around June 2006, the SLA occupied the village and ordered all supporters of the LTTE to leave. The SLA threatened to kill all Tamils (regardless of if they were LTTE members or not) if the supporters did not depart or if any government officials were harmed. This prompted the applicant to flee to Saudi Arabia, where he lived for three years. During this period of absence, the applicant's sister and aunt were questioned about his whereabouts and his reasons for leaving for Saudi Arabia. The applicant's uncle and friend were also killed by the Karuna group during this time (CB 174).
   • In 2009, the applicant returned to Sri Lanka and was questioned by two plain-clothed officers from the CID regarding LTTE leaders who they believed he was affiliated with. He was also questioned about his activities in Saudi Arabia. The officers claimed to be aware that he was a leader in his village before he left the country. He was permitted to leave after he consented to meeting with the Karuna group at a later date (CB 174-5).
   • In the days following his interrogation, the applicant noticed that some members of the Karuna group appeared to be following him. As a result, he decided to stay with his aunt in a different village. In that time, his family in his home village were questioned by the Karuna group about his activities prior to 2006 (CB 175).
   • After this, the applicant relocated to a tourist area where he thought he would not be recognised, then to Colombo and then again to Saudia Arabia in January 2010 (CB 175-6).
   • While in Saudi Arabia, the applicant sent money to a family member (a cousin, from the same family of his brother-in-law) for the purposes of securing a visa for him to come to Saudi Arabia. This family member had been an active supporter and supplier of the LTTE from 2006 to 2010. This family member collected the money from the applicant's sister and was soon after captured, tortured and killed by the Karuna group. Approximately a year later, the sister was questioned about why and how she came to give money to this family member. She explained that the applicant sent the money but did not know for what purpose it was going to be used. The applicant also reports that his friends in the village were also questioned about him (CB 176-7).
   • When the applicant once again returned to Sri Lanka in September 2012, he was questioned by one CID officer and two members of the Karuna group. He was then taken again to an army camp, threatened and physically assaulted for up to seven hours ('punched...in the jaw', 'hit...with a stick' and '[punched]') (CB 177-8).
   • After two of the applicant's uncles came to the army camp and pleaded with the CID for his release, the applicant was freed. Upon his release, the CID and 'army leader' instructed him that he must always come when summoned and report to the army camp every month from then on (CB 179).
   • After this, the applicant departed Sri Lanka for Australia illegally instead of returning to Saudi Arabia via the airport, because he claims that CID officials would flag his attempts to leave and then harm him (CB 179-180).
5. The applicant declared that if he were to return to Sri Lanka he would be tortured, taken to jail, charged with treason, not be granted a fair trial or even killed by the police or SLA. Nowhere in Sri Lanka is safe for him (CB 180).
6. With his application for the visa, the applicant also provided various letters of support and documents endorsing his character and the claims for protection made in the statutory declaration:
   • A letter from his aunt dated 20 May 2013 (CB 206), an undated letter from the Kalaimagal Women Rural Development Society (CB 208), a letter from the Rural Development Society dated 29 January 2013 (CB 211), a letter from the pastor of the 'Believers Church' dated 20 May 2013 (CB 213).
   • A testimonial to good character from a member of 'Pottuvil Pradeshiya Sabha' (CB 215), a Hindu temple representative (CB 217) and the president of 'Pottuvil Peace Forum' (CB 219).
   • A letter from the Assistant Commissioner of Elections Office, Ampara regarding the appointment of the applicant's cousin (or brother) to the vacant position of Pottuvil Regional Board Member (CB 220).
   • A variety of documents (police complaint report and relief applications) connected to the 26 December 2004 tsunami (CB 224-244).
7. On 5 April 2017, the applicant was invited by the Department of Immigration and Border Protection to attend an interview to be held on 26 April 2017 (CB 254-276). The applicant attended the interview with the assistance of a Tamil interpreter.
8. On 26 April 2017, prior to the interview, the applicant's solicitor submitted various Australian media articles, a letter of support written from a friend in Australia and media articles written in the Tamil language (CB 277-299). These articles were later translated and provided to the Department on 10 May 2017, along with legal submissions and a statutory declaration dated 9 May 2017 (CB 303).
9. On 4 May 2017, the applicant's solicitor submitted a detailed written submission with annexures to the Department of Immigration and Border Protection in support of the application for the visa (CB 306-435).
10. On 23 June 2017, a delegate of the Minister refused to grant the applicant the visa (CB 436-458).
11. On 28 June 2017, the solicitor for the applicant made a Freedom of Information request to the Authority (CB 459-461). The request was later withdrawn on 07 July 2017 (CB 486).
12. On 30 June 2017, the decision of the delegate was referred to the Authority for fast-track review under Part 7AA of the Act (CB 467-478).
13. On 21 July 2017, the solicitor for the applicant sought to provide new information to the Authority including written submissions, a statutory declaration dated 21 July 2017, a transcript of the departmental interview with the applicant on 26 April 2017, and a country information report in relation to Sri Lanka dated 21 July 2017 (CB 487-553).
14. On 4 August 2017, the solicitor for the applicant sent an additional translated media article to the Authority by way of submissions (CB 554 -568).
15. On 31 August 2017, the solicitor for the applicant sent the Authority a substantial additional country information report (28 pages), which was said to be up to date as of August 2017 and relevant to the review of the delegate's decision by the Authority (CB 569-597).
16. On 23 November 2017, the solicitor for the applicant sent a further email to the Authority again providing more recent additional country information (CB 598- 637). In the covering email the solicitor said:

"We note that there may be some overlap with previous country information sent by our office. However, as the document attached is the most up to date, we ask that you rely on this country information document when carrying out the review" (CB 599).

1. Attached to the email was a 39-page country information report dated November 2017. This information contained what was considered by the Authority to be "new information" that was not provided to the Minister before the delegate's decision (s 473DD(b)(i) of the Act) for which no exceptional circumstances were established (s 473DD(a) of the Act) and therefore was not considered by the Authority when undertaking the review (s 473DD of the Act) (CB 645-6 [7]).
2. On 5 February 2018, the Authority affirmed the delegate's decision to refuse to grant the applicant the visa (CB 638-668) (Decision).

1. In the Decision, the Authority summarised the information provided to it by the Secretary under s 473CB of the Act.
2. The Authority also referred to the information provided by the applicant's solicitor on 21 July 2017 (apparently received 24 July 2017), 4 August 2017, 31 August 2017 and 23 November 2017. The Authority accepted and had regard to the submissions, statutory declaration and transcript sought to be relied on by the applicant.
3. The Authority then summarised the thrust of the submissions made on behalf of the applicant (CB 646 [8]-[11]). This included listening to a recording of the applicant's visa interview (CB 646 [10]). The Authority rejected a request that the Authority undertake a further interview of the applicant in order to clarify his claims for protection (CB 646 [11]). Relevantly the Authority found that the country information supplied on 23 November 2017 was new information which it could not consider under s 473DD of the Act (see [24] above and CB 645-6 [7]).
4. The Authority listed and summarised the applicant's claims for protection (CB 646 [12]). The Authority then assessed these claims against the refugee criteria in s 5H(1) and 5J of the Act (CB 647-662 [13]-[79]). The Authority was not persuaded that the applicant would face a real chance of harm if returned to Sri Lanka (CB 661 [73]). The Authority was not satisfied that the applicant met the requirements of a refugee in s 5H(1) of the Act and proceeded to consider the complementary protection criteria in s 36(2)(aa) of the Act (CB 662-3 [80]-[85]). The Authority was not satisfied that the applicant faced a real risk of significant harm if returned to Sri Lanka (CB 663 [86]-[87]). The decision of the delegate was affirmed.

1. On 27 February 2018, the applicant applied for judicial review of the Authority's decision. An amended application was filed on 6 November 2024, advancing three amended grounds of judicial review as follows:

(1) The IAA erred in relation to s 473DD in relation to the proposed new information being the "country information report".

(a) The IAA did not bring to account the fact that s 473DD(b)(i) was met in considering s 473DD(a).

(b) The IAA considered the country information report on a final basis, rather than a preliminary or impressionistic basis.

(c) The IAA misunderstood the country information report, in that it wrongly found that the information was consistent with the country information before the delegate, including the 2017 DFAT Report.

(2) Reasons [54]-[55] are affected by illogicality, irrationality or legal unreasonableness.

(a) The IAA found that the applicant was imputed to be a low-profile member of the LTTE, but considered his case on the basis that he was not in fact such a member.

(b) Alternatively, the IAA relied on a finding for which there was no probative evidence, being that the passage of time between 2012 and 2018 had any material bearing on the risks faced by the applicant.

(3) The IAA failed to consider the applicant's Facebook activity cumulatively with the balance of his accepted claims.

31 On 27 February 2018, the applicant affirmed an affidavit that simply annexed the Decision. No further evidence was relied upon save for the documents in the Court Book.

1. At the hearing on 3 December 2024 before her Honour Judge Kirton, the applicant was represented by Mr Aleksov of counsel and the Minister was represented by Mr Barrington of counsel. As I have said, I have read the transcript of the hearing and had the benefit of the submissions made and recorded therein.

1. Mr Aleksov succinctly addressed each of the three grounds of review in written and oral submissions. The transcript of the final hearing records that the ground of review in ground one particular (c) was not pressed at the hearing.
2. In relation to ground one, it was submitted that the Authority erred in the exclusion of new information and the way in which it considered that information.
3. The criticism of the approach taken by the Authority to the new information was that, despite having found that the country information contained in the annexure to the 23 November 2017 email satisfied s 473DD(b)(i) of the Act, the Authority failed to consider whether the satisfaction of that limb might constitute "exceptional circumstances" within the meaning of s 473DD(a) of the Act. This was the approach that is required to be taken and identified by the High Court in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 at [10]- [11] per Kiefel CJ, Gageler, Keane and Gordon JJ (AUS17).
4. It was submitted that instead of applying the principles in AUS17 correctly, in CB 645 [7] of the Decision, the Authority failed to bring to account whether satisfaction of s 473DD(b)(i) constituted exceptional circumstances and instead considered subsections (a) and (b) as two distinct or separate assessments. It was submitted that having accepted that the new country information satisfied s 473DD(b)(i) in paragraph [7] of the Decision, the Authority applied the wrong legal test in determining that no exceptional circumstances existed to enliven the powers of s 473DD(a). The Authority simply assessed whether exceptional circumstances existed and not whether the new information formed part of those circumstances or should be treated as potential exceptional circumstances on its own. This was the error made in AUS17, identified at [20] of the Court's reasons.
5. The second part of ground one was that the Authority failed to consider whether to accept the new information on a preliminary basis as required by the Court in AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90 at [17]- [25] and in particular at [20] per Banks-Smith and Jackson JJ (AZT22). It was submitted that the Authority considered the new information and formed the view on a final basis that it should be rejected as inconsistent with the DFAT country information. Focus was placed on the following part of paragraph [7] of the Decision:

Having reviewed the country information report I am satisfied that the substantive arguments about the present situation in Sri Lanka contained within the report is consistent with a range of other information which was before the Minister at the time of the delegates decision and I am unpersuaded by argument that the most recent DFAT report used by the delegate is not accurate. I observe that the report does not engage with any of the applicant's claims directly, other than in very brief concluding remarks, and deals with some issues that have no direct relevance to the applicant, such as material related to drought conditions in northern Sri Lanka.

1. It was submitted that this passage of the Decision showed that the Authority considered the new country information on a final basis and not as to whether it was "credible" information, but instead whether the new information was persuasive and rendered the DFAT information inaccurate. Further, to reject the information in this way was to make a final determination of the use of the information and misunderstood the manner in which it was sought to be relied on. This misapplied the "gatekeeping" function of s 473DD of the Act and the Authority fell into error in adopting this approach. The Authority, it was submitted, 'put the cart before the horse' in assessing whether to exclude the new information from consideration.
2. In ground two, the applicant pointed to the conclusion reached by the Authority that the applicant was a person with a 'profile' in paragraph [53] of the Decision and may have been a person under suspicion in 2012. The Authority also concluded in [54] of the Decision that the applicant may have been a person 'who was of some ongoing interest to the authorities in 2012'. Therefore, it was illogical and unreasonable for the Authority to conclude in [55] that the applicant would not be a person of interest or warrant further attention from Sri Lankan authorities upon his return to Sri Lamka.
3. Mr Alexsov submitted that it was inconsistent and illogical for the Authority to have found in [55] of the Decision that, while both high-profile and low-profile members of the LTTE were persons of interest to Sri Lankan authorities, the applicant was not a person of low profile and therefore he would not be a person of interest. It was illogical for the Authority, having found that the applicant was a person with a profile and of interest, to conclude that his profile would not warrant attention now. This proposition was not supported by the DFAT country information, and the "passage of time" has no bearing on whether the applicant was a person of interest or a low-profile person of interest. This was not a logical, valid or legally open reason for the conclusions reached in [55] and the Decision, therefore it is legally unreasonable. This was a material jurisdictional error and no question of materiality requires consideration.
4. Finally, it was submitted that the Authority failed to consider cumulatively the applicant's Facebook activity whilst in Australia. Instead, the Authority simply considered that activity on a stand-alone basis in [66] of the Decision. When assessing whether the applicant faced a real chance of harm if returned to Sri Lanka, the Authority was required to consider the cumulative effect of all claims made by the applicant. One of these claims was that the applicant's Facebook activities would expose him to risk of attention from Sri Lankan authorities. In paragraph [73] of the Decision, the Authority omits consideration of the applicant's Facebook activities when assessing the cumulative risk of harm, which was a failure to consider a relevant claim when assessing the risk of harm and whether the applicant satisfied s 5H, 5J and 36(2) of the Act.

1. On behalf of the Minister, Mr Barrington relied on a written outline of submissions dated 18 November 2025 and an agreed List of Authorities. He addressed the outline of submissions and each ground of review in his oral submissions.
2. In relation to ground one it was submitted that there was no error by the Authority in the application of s 473DD of the Act to the new country information. It was submitted that the reasoning in the Decision does not reveal a failure to consider s 473DD(b)(i) when considering 'exceptional circumstances' under s 473DD(a) of the Act. Simply because the Authority did not state expressly that it had done so does not permit the Court to infer error (CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203 at [119] per Derrington and Steward JJ) (CAQ17)).
3. The conclusion reached in paragraph [7] of the Decision does not reveal a failure to consider s 473DD(b)(i) of the Act or a failure to properly address whether exceptional circumstances were present. The applicant bears the onus to establish error and none is apparent from the reasoning. The Authority identified its main concern that exceptional circumstances did not exist, but that did not mean that the Court should conclude that it applied the wrong test.
4. The second aspect to ground one of the grounds of review is also not apparent from the reasoning in the Decision. It was submitted that the Authority did consider the new country information on a preliminary basis and found that the information was consistent with the information that was before the delegate. This was done at a high level and as part of a 'filtering mechanism' of the information to be considered. Reliance was also placed on the decision in AZT22 at [20] and it was open to the Authority when filtering new information to assess the credibility, accuracy and weight of that information. That is what the Authority did and there was no error in doing so.
5. In relation to ground two, it was submitted that the reasoning in [54] and [55] was also logical and reasonably open to the Authority_._ Read objectively, the proper understanding of the Authority's reasoning was that the applicant was once a person of interest; by 2018 he would not have been subjected to reporting regimes because he was neither a high profile or low profile member of the LTTE; he was not a high profile member of the LTTE nor should he be considered a low level member because of the passage of time; and this finding is supported by the fact that he was never a member of the LTTE, he had been detained but released without charge and neither he nor his family were the subject of further interest since 2012. The Authority's reference to the passage of time was a reference to the available evidence that the reporting regimes of the Sri Lankan Authorities only now applied to former high profile and low-profile members of the LTTE. There was nothing illogical or irrational about the manner in which the Authority expressed the conclusions to be drawn from the DFAT country information, when applied to the applicant's evidence. The applicant was not within the class of persons now of interest to Sri Lankan Authorities and therefore the risk of harm was not substantial.
6. In response to ground three, Mr Barrington referred to paragraph [69] of the Decision where the Authority did consider the applicant's activities in Australia cumulatively, which must be read to include his Facebook activities. At [69] the Authority said:

The applicant various submissions relating to his activities in Australia argue that when considered cumulatively, the material would raise the risk of harm to the applicant if he was returned to Sri Lanka. I have reviewed all of the material provided by the applicant about his activities in Australia, and I am unconvinced by this reasoning. I am not satisfied that the there is a real chance of harm arising from this material. In any case, the applicant has not persuaded me that this material should not be disregarded under s.5J(6) of the Act (Empasis added).

1. It was submitted that this meant that the applicant's Facebook activities were considered as part of the cumulative matters when assessing risk of harm, but the Authority held that it must disregard those activities under s 5J(6) of the Act.
2. Further, paragraph [73] of the Decision must be read in context and not divorced from the content of the preceding paragraphs. The words 'having considered all of the evidence before me...', taken in the context of the broader Decision, must be understood as consideration of the applicant's claimed Facebook activities and the rejection of them as creating a risk of harm. Reliance was placed on Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 at [34] per Gilmour, Markovic and O'Callaghan JJ, where the Court said:

...It seems to us, as a matter of inexorable logic, that if, as is common ground here, all individual claims or bases for establishing an entitlement to a visa are dismissed (here, dismissed as not giving rise a real or significant risk of harm upon return to the country of nationality or receiving country), then no amount of "cumulative consideration" of those rejected claims is capable of producing a different result. It follows, in our respectful view, that the primary judge was wrong to hold otherwise.

1. Because the Facebook activity claim was dismissed by the Authority at [66] and [69] of the Decision, a failure to mention it in the Authority's cumulative finding would not have altered the conclusion reached.

1. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30]-[31], Brennan CJ with Toohey, McHugh, Gummow JJ described the role of the Court when conducting judicial review of Administrative decisions (and in particular refugee status decisions), citing Neaves, French and Cooper JJ in Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 115 ALR 1, as follows:

It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker. The Court continued: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error."

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and 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. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court.

1. In Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50 at [25], concerning the manner in which reasons of a decision-maker should be considered where there is no duty to give reasons, the Court said:

It is well settled that in the context of administrative decision making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision. It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision, and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate. Further, "jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power"; but here the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision. Further, the Delegate's letter is "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"

1. Whilst there is some superficial attraction to the submissions made on behalf of the applicant regarding ground one and the failure by the Authority to correctly apply s 473DD of the Act, scrutiny of the Decision without an over-zealous eye attuned to error does not lead this Court to the conclusion that the Authority erred as is submitted by the applicant. The Decision was a decision of the Authority made without the benefit of the guidance given by the High Court in AUS17 at [10]-[11]. However, it was after the decision in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [9] and [35]-[37] per White J, which is referred to at footnote 16 in AUS17.
2. In paragraph [7] of the Decision, the Authority shows the correct approach to the application of s 473DD by considering if s 473DD(b)(i) applied. Section 473DD(b)(ii) did not apply because the new information was not personal information which was not previously known, and it was not submitted by the applicant that it did. The Authority concluded or accepted that the criteria in s 473DD(b)(i) applied because the information could not have been provided before the date of the delegate's decision. The Authority then went on to consider whether there were exceptional circumstances present under s 473DD(a) and found that there were not. I agree with the submission made on behalf of the Minister that it should not be inferred that the Authority therefore failed to consider s 473DD(b)(i) when addressing exceptional circumstances because it was not expressly referred to (CAQ17 at [119]). As Derrington and Steward JJ said:

"It may well be that the Authority identified its main concern as to why there were not exceptional circumstances ... It does not follow, however, that it did not consider other matters."

1. Whilst an express reference to consideration of s 473DD(b)(i) when assessing exceptional circumstances would have put the matter beyond doubt, the omission of such a reference does not in this case disclose a failure to take into account a mandatory relevant consideration (AUS17 at [12] and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [63] per Black CJ, French and Selway JJ).
2. There was also no jurisdictional error in the manner in which the Authority considered the new information. The extract from paragraph [7] referred to paragraph [37] above, when read as a whole, reflects that the Authority considered the new information on a preliminary basis without reaching any final conclusion or assessment about whether the information proved the DFAT information to be inaccurate. The Authority was simply not persuaded on a preliminary basis that it did and therefore it ought not be considered. This was because on a preliminary basis the information in the new country information 'is consistent with a range of other information which was before the Minister at the time of the delegate's decision'. The Authority was not making a fresh decision using material that might ultimately be excluded (AZT22 at [20]), but was simply not persuaded at a preliminary level that it should be considered to establish that the DFAT information was inaccurate. The words used by the Authority ought not be construed with an eye to error. Rejection of the new information was part of a process of filtering the information for conducting the review and was not determinative of the review at the point in the reasoning at which it was considered. This ground is also rejected.
3. There is also no illogicality in the reasoning of the Authority in [54] and [55] of the Decision. Whilst the language used is perhaps "loose" or "unhappy", the conclusion that the applicant was unlikely to be a person who would warrant attention from Sri Lankan authorities if returned to Sri Lanka should not be construed as so illogical as to be unreasonable. The better and objective construction to be given to the language used by the Authority was that because the applicant was not a high profile or low profile former member of the LTTE and had been released without charge, and neither he nor his family have been subject to any follow-up action by Sri Lankan authorities, he is therefore not in that class of persons identified in the DFAT country information as a person of interest. As Crennan and Bell JJ observed in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130]:

Not every lapse of logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

1. This is not an appropriate case in which to interfere because of the conclusions reached in [54] and [55] of the Decision. It was open to the Authority to engage in the process of reasoning in which it did engage and to make the findings it made on the material before it.
2. Ground three of the amended grounds of review also does not disclose a failure to consider the cumulative consideration by the Authority of the applicant's Facebook activity. The Authority considered that activity in paragraph [66] of the Decision under the sub heading Activities in Australia, but was not persuaded that the applicant's activity would bring the applicant to the attention of the attention of Sri Lankan authorities.
3. The Authority also considered the applicant's activities in Australia at [69] and the argument (or submission) that those activities should be considered cumulatively. The Authority reviewed those activities cumulatively and was unconvinced by that reasoning. When read as a whole and in context, the findings at [69] incorporate the cumulative consideration of the applicant's Facebook activities and there was no omission to do so. Further, paragraph [73] reflects a cumulative consideration of all of the applicant's evidence and an omission to refer to specific evidence does not amount to a failure to consider the applicant's claims as relevant to the risk factors under general assessment. This ground of review is also rejected.

1. The amended application for judicial review filed 31 October 2024 is dismissed.

1. Since the hearing before Judge Kirton in December 2024 the Ministerial title for the first respondent changed on 13 May 2025. The name of the first respondent will be amended to 'Minister for Immigration and Citizenship'.

1. Costs should follow the event and be paid by the applicant to the Minister. The transcript shows that at the hearing on 3 December 2024 counsel for the Minister sought costs in the sum of $8,371.30, which was the scale sum applicable at the time of that hearing. An order for that sum is fair and reasonable given the complexity of this case and the comprehensive Court Book, submissions and general preparation required. Costs will be fixed in the sum of $8,371.30 and paid by the applicant to the first respondent.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett.