BMY17 v Minister for Immigration and Citizenship [2026] FCA 174

1. The appellant appeals from a judgment of the Federal Circuit and Family Court of Australia (Division 2) where the primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority which had affirmed a decision of a delegate of the Minister to refuse to grant to the appellant a Temporary Protection (Class XD) (Subclass 785) visa.
2. I heard this matter earlier today and dismissed the appeal. These are my reasons for so doing.
3. Let me begin with some background and then I will turn to the appellant's complaint concerning the primary judge's determination, which ultimately was sourced to the appellant's dissatisfaction with how the Authority had proceeded.

1. The appellant is a Sri Lankan national who arrived in Australia on 6 September 2012 as an unauthorised maritime arrival.
2. On 20 June 2016, the appellant applied for the visa in the class and subclass identified. His claims for protection ultimately consisted of the following matters.
3. In 2007 or 2008 when he was a school student in Sri Lanka, the Sri Lankan authorities detained and beat him on two occasions because they suspected that he and his schoolmates were assisting the Liberation Tigers of Tamil Eelam (LTTE). On the first occasion, the appellant and six other boys were accused by a Sri Lankan Army (SLA) officer of being responsible for a bombing near their school. They were taken to an army camp and beaten until their principal arrived and secured their release. On the second occasion, the appellant was at his school at a time when there was no class. He was asked by some Criminal Investigations Department (CID) officers what he was doing and if he was an LTTE member. The officer slapped him, told him he shouldn't have been at the school, and dropped him off near his home.
4. In April 2012, whilst still a school student in Sri Lanka, he began to receive adverse attention from the People's Liberation Organisation of Tamil Eelam (PLOTE), a former Tamil militant group that had become a pro-government paramilitary group and political party. He said that he was detained by PLOTE on two occasions. On the first occasion, they asked him to join the organisation and he refused. He was released after one day. On the second occasion, he was taken to their offices in the north of Sri Lanka, introduced to PLOTE members, and asked to do menial jobs. After three days, he escaped and fled to Colombo, where he made arrangements to leave Sri Lanka and after one month travelled to Australia by boat.
5. On 13 December 2016, a delegate of the Minister refused to grant to the appellant the visa; he had previously been interviewed in November 2016 with a Tamil interpreter present.
6. On 16 December 2016, the matter was referred to the Authority for review under the then Part 7AA of the Migration Act 1958 (Cth). The relevant compilation of the Act that I have used is No 134.
7. On 13 March 2017, the Authority affirmed the delegate's decision.
8. In its reasons the Authority said that notwithstanding significant inconsistencies between the appellant's evidence at a Departmental interview and his written claims, the Authority accepted that the appellant had provided a reasonable explanation for those inconsistencies and found that the appellant's oral evidence at that interview was generally credible and free from embellishment.
9. The Authority accepted that in 2007 or 2008 the appellant twice came to the attention of the Sri Lankan authorities whilst at school. But it noted that after the two incidents with the Sri Lankan authorities, he continued to live in Sri Lanka without any further attention from the authorities and that he had not claimed that the authorities had recorded his details. The Authority further noted that, in any event, given the appellant's young age at the time of the incidents, the passage of time, and country information indicating improved circumstances for Tamils in Sri Lanka, the appellant would not be imputed to have a pro-LTTE political opinion.
10. The Authority also accepted that the appellant had been detained by PLOTE members. But the Authority noted that more recent country information before it indicated that PLOTE had joined the Tamil National Alliance and had integrated into the political mainstream. On that basis, the Authority was satisfied that there was no real chance that the authorities would impute to the appellant an anti-government political opinion.
11. Now the appellant denied having been harmed by PLOTE whilst in custody. But he claimed that he would be killed for not joining their organisation and for leaving Sri Lanka. But the Authority found that in light of country information indicating that PLOTE were dependent on grassroots support and an absence of information indicating that PLOTE had persisted in undertaking militant activities, the appellant's claim was speculative. Further, given the passage of time, the Authority was satisfied that there was no credible reason for PLOTE to target the appellant for harm or forced recruitment.
12. The Authority did not accept that the appellant would face a real chance of serious harm because he departed the country illegally. And the Authority concluded that the appellant did not face a real chance of serious harm from either the Sri Lankan authorities or PLOTE or on the basis that he was an illegal departee. Moreover, it also concluded that the appellant would not face a real risk of significant harm upon return to Sri Lanka.
13. On 7 April 2017, the appellant filed an application for judicial review in the court below seeking a review of the Authority's decision. Relevantly, ground 2 of that application stated:

The Second Respondent denied the Applicant procedural fairness and/or made an error of law because the applicant was refused to represent his claims/comments orally. By refusing to schedule an oral interview with the Applicant, the Second Respondent fell into error/denied the Applicant procedural fairness.

1. On 28 August 2023, the primary judge dismissed the application for judicial review. In respect of ground 2, her Honour reasoned as follows.
2. Her Honour noted that the limited form of procedural fairness under the then Part 7AA of the Act did not oblige the Authority to invite the appellant to attend an interview.
3. Her Honour interpreted ground 2 broadly and treated it as an assertion that the Authority had unreasonably failed to exercise its discretion under s 473DC to invite the appellant to an interview to provide new information.
4. Her Honour noted that when the appellant was asked by her why it was unreasonable for the Authority not to have sought new information, the appellant said that if he had been invited to an interview he would have raised concerns about his limited English skills when he prepared his written claims and corrected his claims orally.
5. But her Honour did not accept that it was unreasonable for the Authority not to invite the appellant to an interview. As her Honour appreciated, the appellant had already been afforded an opportunity at the Departmental interview to raise his concerns about the lack of an interpreter when he prepared his written claims. Moreover, the Authority had accepted both the appellant's explanation for the discrepancies in the claims and the claimed events.
6. Her Honour held that there was otherwise no reason for the Authority to consider inviting the appellant to attend an interview. Further, the primary judge noted that the appellant had not requested an interview with the Authority.

1. Now the amended notice of appeal before me advances a single ground of appeal, arguing that the primary judge erred in holding that ground 2 of the application for judicial review was not established. The particulars to this ground assert that in light of the difficulties arising from the appellant having made his visa application without the assistance of an interpreter, the Authority erred in not exercising or considering the exercise of its discretion under s 473DC(1) to seek new information to ensure that it properly understood the claims made by the appellant.
2. So, the ground of appeal in essence addresses the same issue as the primary judge did under her broader reformulation of ground 2 of the application for judicial review.
3. Now as the Minister correctly points out, a review under Part 7AA is of a limited kind. It is conducted on the papers without a hearing and with the objective of conducting a limited review that is efficient, quick, free of bias and consistent with Division 3 of Part 7AA; see ss 473DB and 473FA.
4. Further, the Authority cannot set aside the referred decision and substitute its own decision. The Authority is not authorised to exercise all of the powers and discretions conferred upon the Minister. The Authority can only affirm the decision under review or remit the decision for reconsideration (s 473CC). So, its dispositive powers are not broad.
5. Further, Division 3 of Part 7AA is taken to be an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Authority; see s 473DA(1).
6. Now subject to Part 7AA, the Authority is obliged to conduct a review by considering the review material provided to it under s 473CB(1) without accepting or requesting new information and without interviewing the referred applicant; see s 473DB(1). Further, restrictions are imposed by ss 473DC and 473DD as to when the Authority can consider "new information".
7. Relevantly to the appellant's present complaint, under s 473DC(1) the Authority was empowered to obtain new information that was not before the Ministerial delegate and which it considered may be relevant. But it was not under a duty to get, request or accept new information, whether requested to do so or in any other circumstances. Nevertheless, I accept that as a statutory discretion, the exercise or non-exercise of s 473DC(1) was subject to a condition of legal reasonableness. Whether a decision not to seek new information in the form of an interview is not legally reasonable requires an assessment of whether it was open to a reasonable reviewer, cognisant of the statutory scheme, to make the decision he did in the circumstances.
8. Relatedly, I also accept that the Authority can also fall into error if it unreasonably fails to consider the exercise of that discretion. But if that is the complaint, the appellant must establish that the Authority in fact failed to consider the exercise of s 473DC(1) and that such failure amounts to jurisdictional error. But I should also add in this regard that the absence of reference to the exercise or non-exercise of s 473DC(1) in the Authority's reasons will not of itself support an inference that it has failed to consider exercising that power, particularly as the Authority is under no obligation to provide reasons for procedural decisions.
9. Now the appellant's suggestion that the Authority failed to consider exercising s 473DC(1) is not elaborated upon in the amended notice of appeal. At its highest, it appears to rely upon the fact that the Authority did not mention the exercise or non-exercise of s 473DC(1) in its reasons. But in my view that matter is insufficient to support an inference that the Authority failed to consider the exercise of its discretion.
10. Further, I do not disagree with the Minister that the primary judge's conclusion that it was not unreasonable for the Authority not to invite the appellant to an interview has not been shown to be incorrect.
11. The appellant had attended a Departmental interview and raised his concerns about the lack of any or any adequate interpretation or translation when he made his written claims. The Authority noted the discrepancy between the appellant's written claims and the oral claims he made at the Departmental interview, and accepted the explanation that the appellant had provided for that discrepancy. Further, it made it clear in its reasons that it found the appellant credible and accepted his account of past events. Moreover, its findings that the appellant would not face persecution from the Sri Lankan authorities or the PLOTE were based on the passage of time and new country information indicating that conditions had improved in Sri Lanka. I agree with the Minister that in such circumstances, it was within the bounds of reasonableness for the Authority not to invite the appellant to attend an interview.
12. Further, as noted by the primary judge, there was no reason for the Authority to consider inviting the appellant to attend an interview. The appellant had not requested an interview or provided any additional material to the Authority. And in making its decision, the Authority considered similar issues and made for the most part similar findings to the delegate, and in circumstances where any discrepancy between the appellant's written claims and his oral evidence at the Departmental interview was resolved by both the delegate and ultimately the Authority in favour of the latter version, which was in the appellant's favour.
13. In summary, her Honour did not make any error of the type identified.

1. For these reasons I dismissed the appeal earlier today.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Beach.