CLB20 v Minister for Immigration and Citizenship [2026] FedCFamC2G 139

1. A delegate of the minister (the first respondent in these proceedings) refused Mr CLB20's application for a protection visa on 30 March 2020. Mr CLB20 was classed as an 'unauthorised maritime arrival' so the delegate's decision was referred to the Immigration Assessment Authority (the IAA) for review as part of a process established under Part 7AA of the Migration Act 1958 (Cth). The IAA affirmed the delegate's decision on 12 May 2020. Mr CLB20 has taken issue with the IAA's approach to some fresh material that had not been before the delegate. Mr CLB20 says the IAA's mishandling of that new material amounts to a jurisdictional error. He has asked the Court to quash the decision and remit the matter to the Administrative Review Tribunal for determination. I have decided it is appropriate to make orders to that effect. I explain my reasons below.

1. Mr CLB20 is a citizen of Sri Lanka. He entered Australia on 14 October 2012. Because of the circumstances in which he arrived, he was taken to be an unauthorised maritime arrival. On 12 December 2016, he was invited to apply for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa (a 'SHEV'). He lodged an application for a SHEV on 6 April 2017. His application is reproduced in exhibit one (the court book) at pp 11ff.
2. The application for a visa included a number of reports and articles which described the situation in Sri Lanka. Mr CLB20 also included a statement in which he outlined his claims. The statement is reproduced in the court book at pp 103ff. After a lengthy preamble citing multiple news reports of bad behaviour on the part of the Sri Lankan authorities, Mr CLB20 began to articulate his claims in the statement at p 112 of the court book. He described being arrested, detained, tortured and persecuted on the basis of false charges that he was an insurgent. He said the authorities were continuing to look for him after he was released from detention and he fled to Australia even though he had been ordered not to leave without permission. He noted he had not disclosed all the details of this experience when he was formally interviewed upon arrival in Australia. He said he decided to offer a more expansive account in connection with the application for a protection visa.
3. Mr CLB20 was invited to attend an interview with a delegate to discuss aspects of his claim. The interview was conducted on 13 February 2020. In advance of that interview, Mr CLB20 supplied a written submission enclosing new information about his claims for protection. The letter containing the new information is dated 10 February 2020. He contended his family members in Sri Lanka were being harassed and they intended to leave the country if possible.
4. The delegate decided to refuse the application for a SHEV. The notification letter dated 30 March 2020 is reproduced in the court book at pp 160ff. The letter said the delegate was not satisfied the applicant had established he was a person to whom Australia owed protection obligations having regard to the criteria in ss 36(2)(a) and 36(2)(aa) of the Act. In the attached statement of reasons, the delegate expressed doubts about key parts of Mr CLB20's account of interactions with the authorities. The delegate also found the applicant was unlikely to be of continuing interest to the authorities given changes in the security situation in Sri Lanka.

1. The notification letter confirmed the decision had been referred to the IAA for review. Part 7AA of the Act authorised the IAA to conduct reviews on referral from the department of cases drawn from particular caseloads. Part 7AA provided for a more limited form of review than that undertaken by the Administrative Appeals Tribunal which dealt with other caseloads.
2. The IAA wrote to Mr CLB20 on 2 April 2020. That letter is reproduced in the court book at pp 197ff. The letter attached a practice direction which discussed (amongst other things) submissions to the IAA and the possibility of including new information. At [20], the practice direction confirmed IAA reviews were generally conducted 'on the papers' - the papers in question being the relevant contents of the departmental file passed on to the IAA under s 473CB of the Act. The practice direction added: 'However you may provide written submissions, and in exceptional circumstances we may consider new information.' The rules governing submissions were set out at [23]-[25] of the practice direction, and the rules governing new information were set out at [26]-[35]. At [26], the practice direction said:

We can only consider new information (information that was not before the Departmental decision-maker) in very limited circumstances as set out in section 473DD of the Migration Act. We must be satisfied that there are exceptional circumstances to justify considering the new information provided by either you or the Department.

1. The applicant prepared a written submission that was provided to the IAA on 21 April 2020. The written submission included information (under the heading "New Information") about the arrest and detention of the applicant's brothers in the latter part of February 2020. The submission also included information about the applicant's father making payments to secure the release of his sons from custody. The submission did not specify when Mr CLB20 became aware of this news.
2. The IAA affirmed the delegate's decision to refuse Mr CLB20's visa. The IAA's decision is dated 12 May 2020. It is reproduced in the court book at pp 229ff. At the outset of its reasons for decision, the IAA identified the information that was before it. It apparently had access to a record of the interview conducted by the delegate on 13 February 2020. The IAA noted the delegate had cautioned the applicant at the interview that the applicant needed to raise all of his claims and refer to all of the relevant evidence at that time because there might not be another opportunity to provide further information. The IAA also noted it had received the applicant's submission dated 21 April 2020. It explained (at [4]):

To the extent the April 2020 submission reiterates the applicant's claims or take issue with the delegate's decision, I do not consider it to be new information, and I have had regard to it.

1. The IAA then dealt with the information about the arrest and detention of the applicant's brothers in February 2020. The IAA confirmed that was new information which was not before the delegate: at [5]. The IAA then explained (at [6]):

The applicant did not indicate when he found out about these events, and no explanation has been provided as to why these claims could not have been, and were not, made prior to the delegate's decision, why they should be considered credible, or regarding any circumstance that could be considered exceptional. The information provided is extremely vague, containing no information about the date of any event, the circumstances of their abduction, nor identifying the minister involved with having [one of the applicant's brothers] released, who his father is negotiating with to have [the applicant's other brother] released, the amount sought for his release, who the army person is who told his father they suspected his brothers of regrouping the LTTE, or who told him [the applicant's brother] would never be released, or how they formed the belief that the brothers were held under orders of the current president. There is also an apparent inconsistency in the information, suggesting both that an amount of money is being sought for [the applicant's brother]'s release, but that he will never be released. I also consider the timing of the alleged arrest or abduction, occurring within two weeks of the applicant's SHEV interview, is more than merely coincidental. In addition, given the various warnings the applicant was given about presenting all his claims for protection, I consider that if the claims were true he would have done so. In support of the claim regarding his brothers' arrest the applicant also provided country information, which is discussed further below. Other than suggesting the reports relate to the arrest of Tamil youths, the applicant has not elaborated on how those reports support the claims made regarding his brothers, and I am not satisfied they provide confirmation of the claims. Overall, I consider the applicant has fabricated these claims to support his protection visa application, and he has not satisfied me either of the matters in s.473DD(b) are met in relation to the claims or the country information reports. I am also not satisfied there are exceptional circumstances to justify considering the claims or the reports, and I have not had regard to them.

1. The IAA went on to refer to other aspects of the submissions but that is irrelevant for present purposes. The IAA proceeded to summarise the applicant's claims at [11] and then made its assessment having regard to the visa criteria. After making findings about the applicant's circumstances and considering the country information, the IAA said it was not satisfied the applicant faced a real chance of persecution for any of the reasons claimed, either individually or cumulatively. That meant the applicant was unable to meet the requirements applicable to refugees. The IAA also found the applicant was not entitled to complementary protection.

1. The applicant sought judicial review of the IAA's decision. The applicant's two grounds of review were amended with leave at the hearing. They were both directed to the handling of the new information about the arrest, detention and release of the applicant's brothers. It appears to be accepted by the parties that the information qualifies as 'new information' for the purposes of the Act; the controversy lies in how that information should have been handled.

1. The first ground of review contended the IAA's refusal to consider the new information under s 473DD was legally unreasonable. In essence, the applicant said the IAA got ahead of itself when it decided the new information should not be considered because it did not find it credible. In amended particulars to ground one, the applicant contended:

In assessing the new information as not being credible within the meaning of s 473DD(b)(ii) the Authority conflated its assessment of whether it believed the information with the preliminary assessment of whether it was credible information in the sense of open to be or capable of being accepted as truthful, accurate or genuine.

1. Mr Jones, who appeared for the applicant, said this argument arose out of the fact s 473DD dictated a structured enquiry in which the IAA must have regard to s 473DD(b) before referring to s 473DD(a). The necessity for that approach was explained by Kiefel CJ, Gageler, Keane and Gordon JJ in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37. After noting (at [10]) that approaching the tests in the section sequentially would leave the section "at war with itself", the plurality observed (at [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.

1. I turn then to s 473DD(b) which required the applicant to have satisfied the IAA that 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. Mr Jones emphasised the two limbs of the test in s 473DD(b) are separated by a disjunctive, meaning that one can satisfy the test embodied in s 473DD(b) if one satisfies either limb: see CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [37] per Bromberg J. Mr Jones argued that sub-s 473DD(b)(ii) in particular contemplated the decision-maker conducting only a preliminary assessment of the new information to determine whether it was credible in the sense that it was capable of being believed. Mr Jones said the test was satisfied once the decision-maker concluded the information was capable of being believed; he argued the decision-maker strayed into error if they went on to reject the evidence at this stage because a final evaluation of the evidence should be completed with reference to the evidence as a whole. That would occur if the information was admitted, assuming it met the requirement in s 473DD(a) which referred to the existence of "exceptional circumstances to justify considering the new information".
2. Mr Jones's argument relied on the reasoning of Bromberg J in CSR16. In that case, his Honour found (at [41]-[43]):

41. In my view all that the "credible" element of the s 473DD(b)(ii) criteria requires is the Authority's satisfaction that the "new information" is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the "new information" is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether "new information" should be received by the Authority so that it may be considered at the deliberative stage.

42. The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word "credible" is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is "evidently not credible" (VEAL v Minister for Immigration and Multicultural Affairs [2005] HCA 72; (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.

43. The Authority determined that the "new information" that the appellants sought to have it consider did not meet the s 473DD(b)(ii) criteria by imposing a higher standard of satisfaction than the criteria requires. The Authority required satisfaction that the "new information" was true when all that the s 473DD(b)(ii) criteria requires is the Authority's satisfaction that the new information is capable of being believed at the deliberative stage of the Authority's review. In so doing the Authority misconstrued s 473DD(b)(ii) and misconceived what the exercise of its statutory power entailed. The Authority thereby fell into jurisdictional error...

1. I acknowledge CSR16 was decided before the High Court's decision in AUS17, but there is nothing in the High Court's reasoning that would cast doubt on the correctness of what was said in CSR16.
2. Mr Jones argued the IAA in this case did exactly what CSR16 warned against. At [6] of the statement of reasons, the IAA reached a definitive conclusion about the veracity of the information at the preliminary stage when it should merely have applied a filter before considering whether there were exceptional circumstances to justify considering the information. By adopting this approach, the information and the circumstances in which it came to light were considered in isolation from all the other information before the IAA. Mr Jones said the failure to follow the structured approach in s 473DD of the Act was a jurisdictional error, and a material one at that. He argued a different decision-maker might reach a different conclusion if the new information was approached in the correct way.
3. The minister argued the finding the IAA made in relation to the credibility of the new information was open to it. I accept there are reasons why the IAA might have been sceptical of the new information - the fact the information only came to light after the interview might raise concerns - but that is not the point. It is not for the Court to consider whether the IAA has provided a serviceable answer to the question the IAA should have asked itself. Unless the Court is satisfied the answer to the question that should have been asked was inevitably the same (or leads to the same conclusion as the one that the IAA provided), it is likely the appropriate that the question be sent back to the IAA. That is because the job of asking and answering the correct question must be undertaken by those with the statutory responsibility for doing so. That much is implicit in the minister's arguments over the question of whether the decision was unreasonable. Ms Wilford, who appeared for the minister, said the finding in question was open to the decision-maker even if another decision-maker might have reached a different view. If a decision-maker acting reasonably might have reached a different view had the statutory test been applied correctly, that confirms Mr Jones's argument that the jurisdictional error arising out of the failure to follow the decision-making process mandated in s 473DD(b) is material.
4. I am satisfied the first ground of review is made out. There is a material jurisdictional error that affects the decision.

1. For the sake of completeness, I turn to the second amended ground of review. It contended the IAA acted unreasonably, or constructively failed to exercise its jurisdiction, when it decided against (or failed to consider) exercising the discretion in s 473DC(1) to "get any documents or information" that were not before the delegate when they made their decision that the IAA "considers may be relevant". The applicant went on to contend in the amended particulars that if the IAA did consider exercising this discretion, its failure to act would lack an evident and intelligible justification - and was therefore unreasonable.
2. Mr Jones argued the IAA should have realised there was an obvious gap in the applicant's new information about the detention of his brothers in February 2020. Indeed, Mr Jones said the IAA plainly did appreciate there was a gap: it lamented (at [6]) that it had not been provided with information about precisely when the applicant had become aware of the news about the fate of his brothers. Those observations point to the IAA's appreciation that the missing details were relevant to its evaluation of the new information, and to the IAA's task more generally.
3. There is no doubt another decision-maker might have elected to use the power in s 473DC(3) to fill the gaps the IAA had identified. But that is not the test on judicial review. The question (for present purposes at least) is whether no reasonable decision-maker would have failed to exercise the discretion to get the new information in the circumstances. Ms Wilford said one cannot go that far when one appreciates the attenuated nature of the review process established under Part 7AA of the Act. That process dispensed with the more elaborate review process that was conducted by the Administrative Appeals Tribunal in favour of a process that was intended to be conducted on the papers without routinely inviting additional information at the review stage. Part 7AA in that sense gives effect to a policy that encouraged applicants for this class of protection visa to put all their claims before the original decision-maker at an early stage rather than revealing them incrementally. The exceptional powers to admit new information were mainly intended to deal with information that had only just come to hand. Consistently with that general policy, Ms Wilford pointed out s 473DC(2) expressly provided:

The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or any other person, or in any other circumstances.

1. Ms Wilford added the IAA was not under a duty to give reasons for its decision to exercise (or not exercise) the discretionary power to get new information. That is correct although Mr Jones pointed out "the powers conferred on the Authority by Div 3 of Pt 7AA are conferred on the implied condition that they are to be exercised within the bounds of reasonableness": see AYT18 v Minister for Immigration, Citizenship, Migrant Servies and Multicultural Affairs [2021] FCA 597 at [27] per Moshinsky J. In AYT18, a potentially important issue which affected the IAA's decision had not been addressed (otherwise than in passing) by the delegate. That meant the applicant was not on notice that the matter was significant and relevant to the IAA's decision. The IAA proceeded to make its decision on this and other issues without addressing whether it should ask the applicant for new information under s 473DC(3). Moshinsky J concluded (at [31]):

In the circumstances, in my view, it was unreasonable (in the sense discussed in [Minister for Immigration and Citizenship v Li (2013) 249 CLR 332]) for the Authority not to exercise the power in s 473DC to get new information, namely a response or explanation from the first appellant in relation to those issues. It was evident to the Authority that the two issues had not arisen in the interview with the delegate. (The Authority's reasons, eg at paragraph 11, indicate that it had access to, and reviewed, a record of the Protection Visa Interview.) It was also evident to the Authority that the two issues had not been raised in the delegate's decision. Further, it would or should have been evident to the Authority that the first appellant may well have a response or explanation in relation to the two issues.

1. In this case, the factual matrix is slightly different. The applicant plainly knew the new information that he proffered about the fate of his brothers was potentially relevant. That is why he proffered it. Having availed himself of the opportunity to provide information that could at least be considered against the criteria in s 473DD, he failed to include all the obviously relevant facts - like the date on which he came to learn of the arrest and detention of his brothers. The question, then, is whether no reasonable decision-maker would have failed to revert to the applicant and seek yet more information that would enable the IAA to fill the gaps in the new information that was recently provided.
2. A decision-maker would be conscious that the applicant was unrepresented and therefore less able to discern what information might be required. Yet a decision-maker acting reasonably might still be satisfied it had already given the applicant enough of an opportunity to comment. The applicant's conspicuous failure to provide obviously relevant details might have provided a basis for the decision-maker to press ahead given the expectations embodied in the attenuated review process. While I am speculating about that reasoning - speculation which is inevitable given the absence of an express explanation from the IAA for its approach - the applicant has failed to make out its case that the decision-maker acted unreasonably.
3. It would have been preferable if the IAA had reverted to the applicant to ask when he learned the news about his brothers. The delay that would have resulted if the IAA had tarried over that detail was likely to be insignificant. But the failure to exercise the discretion to seek the additional information (or to consider making that enquiry) was not unreasonable in the legal sense. That means the second ground of review must fail.

1. The first ground of review is made out. The decision of the IAA is affected by a material jurisdictional error. It was not suggested to me that it would be inappropriate to exercise the discretion to provide a remedy. In those circumstances, I will make an order quashing the decision of the IAA and issue an order of mandamus directing the Administrative Review Tribunal (which is now responsible for carrying on reviews that were previously carried out by the IAA) to reconsider the decision of the delegate according to law.
2. I will hear from the parties as to costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.