CLF18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 417

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

1. The applicant is a Sri Lankan Tamil who applied for a protection visa in Australia. A delegate of the Minister refused to grant the applicant a protection visa and the Immigration Assessment Authority (Authority) affirmed the delegate's decision. The applicant seeks judicial review of the Authority decision in the Court's jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).[1]
2. The applicant relies on a single ground of application asserting that the Authority failed to apply the correct test in assessing whether new information provided by the applicant met the requirements of s 473DD(b)(ii) of the Migration Act.
3. For the reasons explained below, I have found that the jurisdictional error asserted by the applicant is established. The application therefore succeeds and a writ of certiorari will issue to quash the Authority decision and a writ of mandamus will issue to require the Administrative Review Tribunal to reconsider the matter according to law.

1. The applicant entered Australia in October 2012 and is an unlawful maritime arrival within the meaning of s 5AA of the Migration Act.
2. The applicant applied for a protection visa on 21 October 2015. He provided a statutory declaration with his protection visa application, in which he indicated that he continued to rely on claims set out in a statutory declaration made on 16 August 2013 provided in support of an earlier protection visa application that was found to be invalid. It is not necessary to summarise the applicant's claims for protection for the purposes of this judgment.
3. On 22 February 2016 the applicant attended an interview with an officer of the Minister's Department to discuss his claims for protection.
4. On 10 October 2016 a delegate of the Minister refused to grant the applicant a protection visa. The matter was referred to the Authority for review pursuant to s 473CA of the Migration Act.
5. The applicant, via his representative, provided submissions and evidence to the Authority dated 3, 10, 21 and 29 November 2016. The documents contained some new information.
6. On 18 April 2017 the Authority affirmed the delegate's decision not to grant the applicant a protection visa. The applicant sought judicial review of that decision and on 7 February 2018 the Federal Circuit Court made an Order by consent quashing the Authority's purported decision and remitting the matter to the Authority for reconsideration.
7. On 18 April 2018, upon reconsideration, the Authority affirmed the decision not to grant the applicant a protection visa and it is this decision which is the subject of the current proceeding. Given the confined nature of the ground in the judicial review application, it is not necessary to provide a detailed summary of the Authority decision. The parts of the Authority decision that are relevant to the ground of application are referred to below in the consideration of the ground.

1. The applicant filed his application for judicial review on 15 May 2018. The application was made within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
2. By an amended application filed on 10 February 2025, the applicant advances the following sole ground of application:

The IAA failed to apply the correct test in assessing the proposed new information at Reasons [13], in that having found that the information was "capable of being believed", it went on to consider whether the information was "true", prior to determining whether to admit the information into the review material. That was to apply the wrong test: AZT22 [2023] FCAFC 90, [17]-[24].

1. The evidence before the Court comprises an amended court book filed on behalf of the Minister on 3 February 2025.

Relevant legislation and principles in relation to assessing the credibility of new information for the purposes of s 473DD(b)(ii) of the Migration Act

1. Section 473DD of the Migration Act provides:

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. In assessing whether new information is 'credible' for the purposes of s 473DD(b)(ii), the Authority is to consider whether the information is capable of being believed, not whether the information is true.
2. As Bromberg J explained in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (CSR16) at [41]-[42]:
   1. 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.
   2. 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.
3. This construction of s 473DD(b)(ii) of the Migration Act was found to be correct by the Full Court of the Federal Court (Besanko, Mortimer and Jackson JJ) in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150; [2020] FCAFC 159 (BTW17). Justices Mortimer (as her Honour then was) and Jackson said at [72] that the consideration of s 473DD 'can and should occur in the context of the review material already before the Authority... Assessing the proposed new material (or interview) in this context will assist the Authority in assessing relevance, in assessing how critical the additional information is to its review, and in assessing whether the preconditions laid out by Parliament can be established.'. Their Honours continued at [73]-[76]:
   1. However, there comes a point at which such an assessment will go too far, and in reality will equate to, or become indistinguishable from, the Authority's reasoning on its own - fresh - consideration of the protection visa application. That would not be the correct approach, because that is not the purpose for which the power is conferred.
   2. As procedural powers designed to permit the Authority in specified and limited circumstances to depart from the primary rule in s 473DB and to have available to itself more material than the delegate did, the Authority is confined to a consideration which is compatible and consistent with this purpose.
   3. That is why, in our opinion, Parliament has used the word "credible" in s 473DD(b)(ii) to describe the character of the information a visa applicant seeks to put forward. As Bromberg J said, "credible" means capable of being believed: it is the decision whether the information has that character, as well as the character of being "personal" to the visa applicant, which is to be made at this procedural stage, for the purpose of deciding what the scope of the review material should be, and whether there should be a departure from the primary rule.
   4. Particularly in a scheme premised on a review "on the papers", there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant's explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa applicant (which would occur in deciding if the new information were "true"). That difficulty is that the Authority is, in substance, taking into account material that is not before it on the review in determining the credibility of the visa applicant. That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority: they cannot be based on extraneous material, which is what "new information" is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 is correct.
4. The applicant in this matter also relied on the Full Court judgment in AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90 (AZT22), in which the Full Court (Banks-Smith, Jackson and Feutrill JJ) summarised the relevant principles from CSR16 and BTW17 at [17]-[24] of its reasons.

The Authority's approach to the new information provided by the applicant

1. The Authority recognised at [8] of its reasons that the submissions provided to the Authority on behalf of the applicant contained new information. The Authority identified new information in the submissions provided by the applicant relating to the following matters:

(a) his wife's travel to India on one occasion, for the same reason he travelled there, to escape harassment and threats or ending up as a missing person;

(b) that his cousins on both sides of the family were Liberation Tigers of Tamil Eelam (LTTE) and that he understood the question about LTTE family members to refer to his parents and siblings, not extended family; and

(c) his fear of harm on account of his actual and imputed political opinion as an LTTE supporter or anti-government on account of his northern residency and presence in the south of the country, his family's connections to the LTTE and travel to his residence in the south and as a member of a particular social group of persons relating to persons closely allied with the LTTE.

1. At [12] of its reasons, the Authority concluded that s 473DD(b)(i) of the Migration Act was not satisfied, finding that 'assuming it to be true, the applicant could have provided the information earlier as it was known information about past events'.
2. At [13], the Authority addressed s 473DD(b)(ii) of the Migration Act and said (emphasis added):

I accept that the information is personal information as it relates to him, his family and his trips to India. I accept on the face of the information it is capable of being believed. However, looking at the history of this matter, it is difficult to believe that he would not have raised the LTTE claims previously given he has had many opportunities at interviews and in his written statements. The applicant confirmed that his family had no LTTE associations. I cannot accept as credible that he misunderstood the reference to family members to be only to his parents and siblings and not his extended family. At interview he spoke about his uncle's interrogations. The applicant claimed his uncle was arrested in 2002 and was questioned by TID in 2016. However, he did not mention that the uncle's son was LTTE or that any of his cousins were LTTE. Further, at interview he stated that the uncle was questioned about his frequent travel between Kilinochchi and Negombo. If the applicant's cousins or extended family were LTTE it is difficult to believe he would not have mentioned that during discussions of his uncle's interrogations. Further, as mentioned, he had legal representation, provided a number of written statements and was informed of the importance of providing all his information at interview. Given the late claims and many opportunities to provide the information, and discussion about his uncle, and the significance and relevance of LTTE claims, I find it unbelievable that he would not have raised these claims earlier if they were true. In all the circumstances, I do not consider the information is credible. I am not satisfied as to s.473DD(b)(ii).

Did the Authority misconstrue s 473DD(b)(ii) of the Migration Act?

1. The applicant submitted that the Authority misapplied s 473DD(b)(ii) of the Migration Act by going further than the filtering exercise required by that provision. The applicant submitted that the Authority should have recognised that s 473DD(b)(ii) was met once it 'accept[ed] on the face of the information it is capable of being believed'.
2. At the hearing, Counsel for the applicant accepted that in order to arrive at a conclusion that new information is capable of being perceived as truthful, the Authority may have regard to other matters before it, including circumstantial matters. Counsel for the applicant submitted that the Authority's reasoning in the final lines of [13], referring to the lateness of the claims and their significance, displays a misunderstanding of what is credible. The finding at the end of [13] reflects an assessment of the truth, either on a final basis, or a basis that extends beyond that required by CSR16. Counsel for the applicant submitted that the second sentence of [13] shows that the Authority considered that the new information was capable of being accepted. In response to the Minister's submission (see below), focusing on the words 'on the face of the information' and 'looking at the history of the matter', Counsel for the applicant submitted that not much can be taken from these words.
3. The Minister submitted that the Authority's reasons should be construed as meaning that if the new information was considered on its face alone, it could be considered credible, but in the context of the case, the information previously put and other opportunities to put the claims, the new information is not credible. The Minister submitted that the Authority, consistent with BTW17, was entitled to consider the previous existing information in analysing whether the new information is credible. The words 'on the face of the information' and 'however, looking at the history of this matter' are critically important and indicate that the Authority did not simply consider the new information credible and then go on to consider its truth. Rather, the Authority factored in critical context as it conducted its task under s 473DD(b) of the Migration Act. The context is important, including that the applicant had already told the delegate that his family had no LTTE connections, had been positively asked a question about his family's LTTE connections and advised that there were none, and provided an explanation for that answer in his statutory declaration to the Authority, which the Authority did not accept as credible. The Authority was also concerned about the opportunities the applicant had to provide the new information earlier, including with the benefit of legal assistance. The Minister further submitted that the language 'capable of being believed' used by the Authority at [13] indicated an awareness of the correct threshold and tends against the Authority having misunderstood the relevant test.
4. The Minister submitted that, read fairly, the Authority did not enter into the substance of the information itself and whether the claim was truthful or not. Rather, the Authority assessed relevant contextual material to come to a view about whether, in context, the new claims were credible in the sense of capable of belief.
5. I find that the Authority misapplied s 473DD(b)(ii) of the Migration Act in the present case. The Authority accepted, in the second sentence of [13], that the new information was capable of being believed. Once it made this finding, the 'credible' aspect of the test for the purposes of s 473DD(b)(ii) was satisfied. This of course is not the sole requirement of s 473DD(b)(ii). However, the Authority ultimately purported to find that s 473DD(b)(ii) was not satisfied on the basis that the new information was not credible, without assessing or making any express or implied findings on whether the information was personal information and whether it was information that was not previously known (by either the Minister or the applicant: see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [34] and, had it been known, may have affected consideration of the applicant's claims. Instead, having found that the information was on its face capable of being believed, the Authority then proceeded to address whether the information was in fact true.
6. I accept that it was open to the Authority to have regard to the information already before it in deciding whether the new information was capable of being believed. This is made clear by both BTW17 and AZT22. However, the Authority's reasons, properly construed, show that it went beyond considering whether the information was capable of being believed in the present case and assessed whether the new information was true. I do not accept the Minister's submission that words such as 'on the face of the information' and 'however, having regard to the history of the matter' somehow mean that the sentence 'I accept on the face of the information it is capable of being believed' is not a finding for the purposes of the credibility of the new information for the purposes of s 473DD(b)(ii) of the Migration Act and that the Authority instead, in referring to the subsequent matters in [13], was relying on those matters solely for the purpose of assessing whether the information was capable of being believed. Rather, I consider that the clear statement at the start of the paragraph, which reflects the test in CSR16, when juxtaposed with the finding at the end of the paragraph, reflects that the Authority proceeded to consider whether the information was in fact true. This was not the approach required by CSR16, BTW17 and AZT22.

1. The Minister submitted that if the Court finds an error in the Authority's approach to s 473DD(b)(ii) of the Migration Act then any error was not material. The Minister contended that the materiality assessment is restricted to the overall outcome of the matter, and not whether the state of satisfaction regarding s 473DD could have been different. The Minister submitted that even if the Authority had found s 473DD was satisfied in respect of the new information, the Authority's reasoning at [13] indicates that it would not have accepted the claims in any event. There is no realistic possibility that the Authority would have engaged in some completely different reasoning when substantially considering the new information. The threshold to materiality, though undemanding, has not been met in this case. Counsel for the Minister submitted that if the Authority erred in the manner alleged, it would in effect have made a final finding on the truth of the claims in the new information. Counsel for the Minister submitted that the threshold to establish materiality is low, but there still needs to be a realistic possibility of a different outcome. Counsel for the Minister submitted that, in the present case, there was not a realistic possibility that the Authority could have come to a different decision in relation to the applicant's claims.
2. The applicant did not address materiality in his written submissions. In his oral submissions, Counsel for the applicant submitted that, having regard to the current authorities and the undemanding test for materiality, the Minister's submission to the effect that even if the information was admitted, it was necessarily going to be rejected in any event, cannot be accepted. Counsel for the applicant submitted that it is not possible to know the impact of the Authority's error. The Authority may have needed to exercise some additional power, including seeking new information from the applicant or country information. The course the review may have taken, were it not for the Authority's error, cannot be known.
3. The Authority's error was material to its assessment of s 473DD of the Migration Act. Had the Authority proceeded on the basis that the information was capable of being believed, rather than proceeding to consider whether the information was true, it could realistically have found that s 473DD(b)(ii) was satisfied. Given that the High Court held in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 at [11]- [12] that the Authority, in considering whether the requirements of s 473DD are met in relation to new information provided by a referred applicant, is first to assess whether the requirements of both limbs of s 473DD(b) are met and, if satisfied that the requirements of either of both of s 473DD(b)(i) or (ii) are satisfied, take that finding into account for the purposes of assessing whether there are exceptional circumstances for the purposes of s 473DD(a), there is also a realistic possibility that the Authority may have found that the requirements of s 473DD(a) were met, had it not made the error in this case.
4. Both parties addressed whether the substantive decision of the Authority could realistically have been different if the Authority had not erred in its approach to s 473DD of the Migration Act. It is appropriate to consider whether the Authority's substantive decision could realistically have been different had it not misapplied s 473DD(b)(ii): see, for example, ABH18 v Minister for Home Affairs [2020] FCA 620 (ABH18) at [34]; CDJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 345 (CDJ19) at [39].
5. There is a lot of merit in the Minister's submission that the Authority's reasoning at [13] shows that it would not have accepted the claims in the new information in any event. Similar submissions have been accepted in previous cases to find that an error in the approach of s 473DD is not material: see, for example, ABH18 at [45] and CDJ19 at [39].
6. However, I do not accept the Minister's submission in this particular case.
7. First, it is clear from the state of the authorities on materiality, in particular, the more recent High Court authorities such as LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 (LPDT) at [14]-[16] and Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 at [47], that the threshold for materiality is not demanding or onerous. The High Court explained at [14] of LPDT (footnotes omitted):

The question in these cases is whether the decision that was in fact made could, not would, "realistically" have been different had there been no error. "Realistic" is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.

1. Second, the Authority in the present matter made adverse credibility findings against the applicant, both in relation to its findings at [13] and in the course of the substantive review. The assessment of credibility is not linear: BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 94; [2020] FCAFC 189 at [101]. The Authority's assessment of the applicant's credibility at [13] of its reasons could realistically have impacted on its assessment of the applicant's credibility in the substantive review. That is the precise circumstance that the Full Court cautioned against in BTW17 at [76] (extracted at [17] above), namely, that it would be inconsistent with the statutory scheme for the Authority to rely on new information, which does not meet the requirements of s 473DD of the Migration Act and therefore cannot be considered in the substantive review, to make findings about the applicant's credibility in the substantive review. There is a realistic possibility that the Authority's assessment of the applicant's credibility could have been different had it not erred in its approach to assessing the credibility of the new information for the purposes of s 473DD(b)(ii) of the Migration Act.
2. Third, I acknowledge the applicant's submission that the Authority may have exercised other procedural powers if it had not made the error it did in relation to s 473DD(b)(ii) of the Migration Act. However, given the finding that I have made in the preceding paragraph, it is unnecessary to address that submission in the present case.
3. The Authority's error in the present case is material and therefore amounts to jurisdictional error.

1. Given my findings that the applicant has established that the Authority made a jurisdictional error in this matter, it follows that the judicial review application is successful and writs will issue.
2. I therefore issue a writ of certiorari to quash the Authority decision. It is also appropriate to issue a writ of mandamus to require reconsideration of the matter. The Authority no longer exists and Part 7AA of the Migration Act has been repealed by the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Rule 11(3) of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Rules 2024 (Cth) provides that anything the Court could have previously done in relation to the Authority, including remitting the decision for reconsideration, may be done in relation to the Administrative Review Tribunal. It is therefore appropriate that the writ of mandamus be directed to the Administrative Review Tribunal.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Immigration Assessment Authority are to the Authority as it existed at the time the applicant's matter was before it for review.