DJN17 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1306

1. The applicant's complaint concerning the IAA's treatment of the UKHO Report misunderstands the IAA's finding at [8]. The IAA at [8] found, with respect to s 473DC(1)(a), that it did not consider the UKHO Report was "relevant" (Not Relevant Finding).
2. As stated in CDZ16 v Minister for Immigration and Border Protection [2017] FCA 967 at [10]:

In terms, s 473DC(1) consigns the subject of relevance to the Authority's evaluative judgement and then only to the extent that the Authority "considers" that the information concerned "may", not "must", be relevant. Language of this kind has the effect that it is not for a court on judicial review ... itself to determine whether the information is or is not relevant or even whether it may be relevant. It is enough that a conclusion is reasonably open to the Authority that the information may or, may not, be relevant ... It was reasonably open to the Authority to consider that neither of the news articles might be relevant to a claimed basis of fear of persecution. That being so, it was unnecessary for the Authority to advert to any of the considerations specified in s 473DD, because the need to consider them is predicated upon the existence of "new information", as defined. Neither article comprised "new information".

1. During the hearing in this Court on 12 August 2025, I invited Mr Selliah to identify a jurisdictional error in the Not Relevant Finding. Mr Selliah asserted that it was not reasonably open to the IAA to find that the UKHO Report was not relevant, but did not develop the submission further.
2. Mr Selliah relied on the fact that the IAA reviewer in 2017 described the UKHO Report in the IAA's 2017 Decision as "an authoritative source of information [which] in particular addresses the processes and conditions of rehabilitation". However, that a reviewer in 2017 considered that a country information report was relevant to that reviewer's task in 2017 does not mean that it was not reasonably open to a different reviewer in 2020 to decide that the same country information report was not relevant to the reviewer's task in 2020.
3. I asked Mr Selliah to identify any item of information in the UKHO Report (listed at CB 204-205) that he considered was clearly relevant to the IAA's review in November 2020 of the delegate's decision. Mr Selliah did not identify any item of information. The fact that the applicant was unable to identify to the Court any item of information in the UKHO Report which was clearly relevant to the IAA's review task adds to the challenge of persuading the Court that the Not Relevant Finding contained a jurisdictional error.
4. I consider that it was reasonably open to the IAA to find at [8] that it did not consider the UKHO Report was 'relevant' within the meaning of this word in s 473DC(1).
5. The second and third documents or items of information the subject of complaint are the police message form and letter from the applicant's father at CB 172-173. The IAA at [11]-[13], in considering whether it could consider the documents in light of s 473DD, stated:

[11] The police message form required the applicant to attend Colombo CID on 12 October 2016. The father's letter indicated he had found out the police had issued an arrest warrant and that they had asked the applicant's father a lot of questions and made accusations about the applicant (that he received LTTE training, what works he did for the LTTE, where he kept weapons, how many houses he accommodated LTTE, the details of the persons and whether he fled to a foreign country and has contacts with the L TTE from there and is helping them).

[12] According to the 2020 submissions the information was directly personal to the applicant and demonstrates that the authorities still had strong specific interest in the applicant. It was corroborative of his claims and buttresses the credibility of the applicants fears and therefore exceptional circumstances exist to consider the new information. The applicant's father's letter also addressed factual claims the delegate did not accept. It was submitted it demonstrates that the police are actively enquiring about the applicant's role in accommodating LTTE cadres in Chilaw and the delegate erred in their factual finding.

[13] I consider the police report and letter from the applicant's father could have been provided to the delegate as they predate the delegate's decision. The applicant's representative in the 2016 submission states that they were not available at the time of the delegate's interview in August 2016 , but there is no explanation as to why they were not given, or the delegate not advised of the development of events in the weeks before the decision was made. Further, I do not consider the information is credible. Other than an illegible signature, there is no identifying evidence from the applicant's father that indicates the letter was actually from him. It is odd also that the father's own letter is addressed to the father as well. Further, while the NAATI accredited translation of the father's letter refers to the issuance of an arrest warrant, the document provided is a 'police message form' asking the applicant to attend CID. It is not an arrest warrant and does not appear to be a summons or indicate any consequence if not responded to. It is a pro forma message form which indicated it is used for sending messages from one police station to the next. Given it is police message pro forma between police stations it does not make sense that it is a message directed to the applicant. Further, there was no address given of Colombo CID or any contact details to enable the person to know where to attend. Further, I find it difficult to believe that the police message form would only give 2 days' notice requiring him to attend at the Colombo CID given the distance between Colombo and Kilinochchi. It [is] also not credible that police would issue such a message knowing he was not in the country (as indicated in the father's letter). While on the face of it the information may be corroborative, I do not consider the information is credible information. Further, I find it difficult to believe that the applicant would not have provided this information earlier or informed the delegate of such events or documents (even if he had not yet translated the documents) given their significance. I am not satisfied as to s.473DD(a) or (b)

1. The applicant's complaint in particular (c) of ground 2 concerning the IAA's findings at [11]-[13] is:

At [13], the IAA in its second decision concluded that the information contained in the police report and the applicant's father's letter was not credible. However, it was not open for the IAA to make a credibility finding. All the 'credible' element of s 473DD(b)(ii) criteria requires is that the IAA was satisfied that the 'new information' is capable of being believed, as s 473DD(b)(ii) merely acts as a 'filtering mechanism' (CSR16 at [41]-[42]). By undertaking a prolonged and lengthy deliberation of the new information's credibility at [13], the IAA exceeded its jurisdiction by imposing a higher standard of satisfaction than the s 473DD(b)(ii) criteria requires ( CSR16 at [43]). The IAA also did not adequately consider whether there were exceptional circumstances to justify considering this new information under s 473DD(a).

1. One particular of the applicant's complaint relies on CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 where Bromberg J stated that 'credible' in s 473DD(b)(ii) means 'capable of being believed', and it is not a condition of engagement with s 473DD(b)(ii) that the information be 'true'. It is stated at AS [41]:

As articulated in CSR16, the credibility standard outlined in section 473DD(b)(ii) requires only that the new information be "capable of being accepted by the authority as truthful", not to be inherently true. The IAA's analysis in paragraph 13 appears to impose a higher threshold, demanding definitive proof of credibility rather than acknowledging that the information, on its face, could be perceived as credible ("credible personal information") for the purpose of s473DD. The applicant's police report and father's letter directly relate to the applicant's safety and standing with authorities, aligning with the notion that they deserve to be considered at the deliberative stage together with all other evidence, once pass the s473DD threshold.

1. I consider that the IAA at [13] correctly understood that 'credible' meant 'capable of being believed'. The multiple concerns listed by the IAA at [13] concerning the two documents, based principally on the appearance and content of the documents, is consistent with a conclusion that the IAA understood that 'credible' meant 'capable of being believed'. In CSR16 at [39] Bromberg J noted that "it was not in contest that the Authority was engaged in a process of assessing the veracity of the 'new information', not on its face, but by reference to 'review material' which had been received by the Authority". In the present matter, in contrast, the IAA principally assessed the veracity of the two documents based on the appearance and content of the two documents.
2. A second particular of the applicant's complaint relies on Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; 294 FCR 150 (BTW17), and AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90 (AZT22). In BTW17 at [68]-[69], [73] and [76] the Full Court stated:

[68] ... what is contained in s 473DD is described as a "precondition". That is, although it is part of the review function of the Authority, the exercise of power under s 473DD comes before the Authority can "consider new information that is given to it" by a referred applicant. It is thus part of the Authority's preliminary decision-making about what is the complete scope of the material it will be considering on its review for the purpose of its statutory task ...

[69] ... the precondition in s 473DD(b)(i) needs "[n]o explication". It is a matter of objective fact, and straightforward. It would be curious if the precondition in s 473DD(b)(ii) were not also treated as involving a relatively straightforward assessment, being, as we have explained, a preliminary step the Authority must take before settling on the scope of the material which is to be before it on its review, so that it can consider afresh the protection visa application, and make its own decision.

...

[73] 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.

...

[76] 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.

1. In AZT22, Banks-Smith and Jackson JJ found that the IAA made the type of error explained in BTW17 at [73] and [76]. As explained by their Honours at [55], the IAA applied a finding it made "at the deliberative stage of the review in assessing whether ... new information, [being] information that might have been relevant to that finding, is credible". This approach by the IAA mixed and confused:

(a) the "Authority's preliminary decision-making about what is the complete scope of the material it will be considering on its review" (BTW17 at [68]) or the "preliminary step the Authority must take before settling on the scope of the material which is to be before it on its review" (BTW17 at [69]) (the step of which s 473DD is a part); with

(b) "the Authority's reasoning on its own - fresh - consideration of the protection visa application" (BTW17 at [73]) or "the deliberative stage of the review" (AZT22 at [55]).

1. In the present matter, the IAA at [11]-[13] has not made this error. Mr Selliah did not identify any part of the IAA's reasons at [11]-[13] which indicated the error identified and explained in AZT22.
2. A third particular of the applicant's complaint is that, as stated in the last sentence of particular (c), "the IAA also did not adequately consider whether there were exceptional circumstances to justify considering this new information under s 473DD(a)". It is asserted at AS [48]:

The IAA also did not adequately consider whether there were exceptional circumstances to justify considering this new information under s 473DD(а). The phrase 'exceptional circumstances' has a broad meaning and, at a minimum, it refers to circumstances that are not regularly or normally encountered.

1. Mr Selliah did not explain why the Court should infer that the IAA did not adequately consider whether there were exceptional circumstances. I consider that the IAA's "reasons for decision [at [13]] disclose a logical and intelligible basis for" (Minister for Immigration and Border Protection v Gill [2019] FCAFC 9; 268 FCR 575 at [54]) its finding in the last sentence of [13] that "I am not satisfied as to s 473DD(a)".
2. Even if I am wrong and the IAA erred in its finding concerning s 473DD(a), the IAA also found in the last sentence of [13] that "I am not satisfied as to s 473DD ... (b)". This is a separate and independent basis for the IAA's conclusion that, pursuant to s 473DD, it "must not consider" the two documents.
3. For the above reasons, ground 2 does not identify a jurisdictional error in the IAA's decision.

1. At the conclusion of the hearing, I invited submissions from the parties on costs. Mr Dennis sought an order that the applicant pay the first respondent's costs in the sum of $6,700. Mr Selliah did not oppose this order. I consider the amount sought by the first respondent is reasonable. I will make this order.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser.