DKG18 v Minister for Immigration and Citizenship [2026] FedCFamC2G 579

1. On 24 January 2017, the Department of Foreign Affairs and Trade (DFAT) published the 'Country Information Report - Sri Lanka' (2017 Report).
2. On 24 March 2017, the Department invited the applicant to attend an interview on 12 April 2017 (SHEV interview).
3. On 12 April 2017, the applicant was interviewed by a delegate of the Minister. Information provided by the applicant at that interview and the delegate's findings included[5]:

...that in his early adulthood he had worked for the LTTE by painting pictures that included the Tamil flag, and had later worked at a different shop owned by the LTTE, before moving through various places and ultimately being captured by the SLA in May 2009. He also claimed to have met Prabhakaran (the founder and leader of the LTTE) in 2006. The delegate accepted these claims as credible.

...further claim[s] to have been released from the IDP camp because he did not admit to being a LTTE member, and the delegate accepted that he was detained in several IDP camps in the Vavuniya area before being released in January 2010, but that at the time "he was not suspected by the Sri Lankan authorities of having any involvement with the LTTE". The delegate did not accept that he feared harm from the Sri Lankan authorities or that he was of interest to them when he left the country in 2012. The delegate accepted that he would considered to be a failed asylum seeker on his return to Sri Lanka and that he left the country illegally.

1. The delegate refused the SHEV application on 21 September 2017. Overall, the delegate found that the applicant was of no interest to Sri Lankan authorities despite links to the LTTE and that the chance of the applicant facing persecution for this reason was remote. As such, the delegate found that the applicant did not have well-founded fear of persecution[6] and was not satisfied that he met the criteria in ss 36(2)(a) or (aa) of the Act[7]. Relevantly, the delegate referred to the 2017 Report extensively throughout its decision.
2. On 3 October 2017, the Authority wrote to the applicant and acknowledged that the delegate's decision had been referred to it for review. That letter attached a document entitled 'What you need to know about the [IAA]' and amongst other things, informed the applicant that he can provide a written submission on why he disagrees with the department's decision[8].
3. On 21 October 2017, the applicant's legal representative provided written submissions to the Authority. The applicant says that his letter to the Authority contained a combination of argument about why he disagreed with the delegate's decision and new information about previously undisclosed claims[9].
4. On 23 May 2018, DFAT published the 'Sri Lanka - Country Information Report' (2018 Report), which purported to replace the previous version of the report published on 24 January 2017.

1. In accordance with s 473CB of the Act, the Secretary of the Department provided the Authority with all material in their possession which was relevant to the review. The Authority conducted its review without inviting the applicant to a hearing.
2. On 4 June 2018, the Authority affirmed the delegate's decision not to grant the applicant's protection visa application.
3. The Authority's decision record identified the issue before it was whether the applicant faced a real risk of significant harm or was a person in respect of whom Australia had protection obligations.
4. At [4]-[8] of its decision, the Authority identified that new information had been provided by the applicant to the Authority in their written submissions on 21 October 2017. The new information included that:

(a) the applicant was an LTTE member who was sent by the LTTE to undergo basic training, Sea Tiger training and monitoring training;

(b) the second camp the authorities forced his family to go to was where those identified with LTTE links were sent and he was only released with the help of the ICRC on 10 October 2010;

(c) he will suffer significant economic hardship because of harassment by authorities if he returns and because he belongs to a particular social group comprising LTTE members; and

(d) he will be forced to go into rehabilitation if returned and that he believes he is on a "watch list" because of his association with the LTTE members.

1. The applicant also provided a link to a video of the North Chief Minister C.V. Wigneswaran stating that it is not safe for those who are seeking asylum in foreign countries to return to Sri Lanka.
2. The Authority was not satisfied there were any exceptional circumstances to justify considering the video, as the video was published on the internet prior to the delegate's decision, the information conveyed in the video was not personal information, and because there was more recent information before the Authority from credible sources about the situation for returning asylum seekers.
3. In his written submission to the Authority, the applicant explained that information about the true extent of his involvement with the LTTE was not provided earlier as he had heard this could result in him being put into detention indefinitely or returned to Sri Lanka. The applicant stated that he only realised the need to reveal all details of his involvement with the LTTE when his application for protection was refused by the delegate. Further, the applicant stated that he could not provide his claims in detail due to the 5-page limit for submissions to the IAA, adding that he would provide more information if invited by the Authority to an interview or given an opportunity to provide more detail.
4. The Authority was not satisfied that there were exceptional circumstances which justified the consideration of the new information. The Authority's analysis follows:

... I consider the applicant was put on notice during the SHEV interview that the delegate had difficulty accepting the applicant was of ongoing interest to the authorities on suspicion of LTTE links after being released from the IDP camp in January 2010. When the applicant mentioned he met Prabhakaran in the SHEV interview for the first time and the delegate queried why this significant claim was only being first mentioned toward the end of the SHEV interview, the applicant said he feared mentioning it because of the data breach and he did not trust anyone. At the commencement of the SHEV interview he said he had received a letter from the Department indicating that if his data had been inadvertently released on the Department's website, none of his claims would have been released. The delegate also said that none of his claims would be provided to the Sri Lankan authorities if he were returned. Further, in that interview, the applicant felt comfortable enough to provide all the details about his claimed dealings with Prabhakaran and had already provided a number of details about his involvement with the LTTE in his SHEV application. Following this, the delegate asked him if there were any other reasons he feared returning to Sri Lanka, given he had just revealed, for the first time, details of his dealings with Prabhakaran in 2006 and the applicant said there were not. The applicant also definitively stated he did not receive any training from the LTTE other than in self-defense and in construction, when directly questioned on this.

...claim [the applicant] was an LTTE member, underwent Sea Tiger and monitoring training, would suffer economic hardship, is part of a particular social group comprising LTTE members, would be sent to rehabilitation and is on a watch list to be unsupported. The claim regarding his family being placed in a camp for those with LTTE connections and only released with the assistance of the ICRC on 10 October 2010 is, on its face, inconsistent with the UNHCR "return form" provided to the delegate which indicates they returned to Point Pedro in January 2010.

In all the circumstances I am not satisfied that exceptional circumstances exist to justify consideration of the information.

1. The Authority decided not to obtain further information, concluding that the applicant had been afforded an adequate opportunity to put his case before the delegate.
2. The Authority's reasons for refusing the visa are detailed and run to nearly 15 pages. The reasons are extensively footnoted and reveal that the Authority relied heavily on country information, including the 2017 DFAT report, in its assessment of the applicant's protection claims.
3. Other relevant aspects of the Authority's decision and reasons are discussed below to the extent they are relevant to the grounds of review.

1. On 29 June 2018, the applicant filed an application for judicial review of the Authority's decision. By an amended application subsequently filed on 15 May 2025, the applicant seeks to impugn the Authority's decision on three grounds as follows:
   1. The IAA's failure to obtain the most recent DFAT report was legally unreasonable, lacked any evident and intelligible justification, and/or stultified the performance of its statutory task.

Particulars

1. On 10 October 2017, the delegate's decision was referred to the IAA.

2. On 23 May 2018, twelve days prior to the IAA's decision on 4 June 2018, DFAT published its country information report on Sri Lanka (2018 report), replacing the previous DFAT report on Sri Lanka published on 24 January 2017 (2017 report).

3. The IAA relied on the 2017 report in its assessment of the applicant's protection claims and did not obtain, or consider obtaining, the 2018 report.

4. Evidence indicates that the IAA had, or reasonably ought to have had, knowledge of the publication of the 2018 report prior to making its decision (see affidavit of Rachel Mason dated 14 May 2025).

5. The IAA's failure to have regard to the most recent DFAT report undermined a core aspect of its review function, and could realistically have resulted in a different outcome, as the 2017 and 2018 reports differed in material respects that were relevant to the Applicant's protection claims.

6. The IAA failed to consider a claim or integers of a claim that clearly emerged from the material.

Particulars

1. A claim clearly emerged from the material that the Applicant faced a real chance of persecution if he were returned to Sri Lanka and he openly expressed his genuinely held political views.

2. The IAA failed to consider the claim or integers of the claim at referred to in particular (a).

3. The error was material.

4. The IAA failed to complete its statutory task and/or misconstrued or misapplied s 473DD of the Act.

Particulars

1. The Applicant provided new information to the IAA consisting of a claim that "he was an LTTE member, underwent Sea Tiger and monitoring training, would suffer economic hardship, is part of a particular social group comprising LTTE members, would be sent to rehabilitation and is on a watch list": Reasons, [6].

2. The IAA failed to assess whether the information referred to in particular (a) was credible personal information within the meaning of s 473DD(b)(ii) of the Act.

c. The error was material.

1. The judicial review application was heard on 11 June 2025. The applicant was represented by Mr Bayly, a solicitor advocate, and the Minister by Mr Mutton of counsel.
2. Prior to the hearing each of the parties filed written outlines of submissions. The Minister prepared and filed a court book. The applicant also filed an affidavit affirmed by his solicitor, Rachel Mason on 14 May 2025 (Mason Affidavit), which annexed material produced by the Administrative Review Tribunal (ART or Tribunal) under a freedom of information request. The annexures comprised:

(a) FOI request made by the applicant's solicitor to the Tribunal via email on 5 May 2025 (Annexure 1);

(b) FOI Notice of decision and email from the ART dated 9 May 2025 (Annexure 2);

(c) FOI release on 9 May 2025, disclosing an email dated 23 May 2018, from an Executive Officer of the IAA which was addressed to "reviewers" and stated:

...find attached the DFAT Country Information Report on Sri Lanka published today, which replaces the DFAT Country Information Report on Sri Lanka of 24 January 2017. It is available on the DFAT reports page and SL country portal, and will be on the DFAT's website publications... (Annexure 3).

(d) three emails from 12 to 13 May 2025 between the applicant's solicitor and the Tribunal, where the applicant's solicitor sought confirmation about whether there were any other emails alerting IAA reviewers to the publication of the 2018 Report, or whether the reviewer who decided the applicant's application was included in the recipients in the email of 23 May 2018 (Annexure 4);

(e) email from the Tribunal on 13 May 2025 which administratively released an email dated 1 June 2018 from the IAA's Library Services to the IAA distribution list (Annexure 5);

(f) email dated 1 June 2018 from the IAA's Library Services to the IAA distribution list, with the subject line "Migration Current Awareness Bulletin Issue No. 11/2018", and which stated:

Dear members and staff,

Please find attached the latest issue of the Library's Migration Current Awareness Bulletin... Previous issues of the Migration Bulletin are available on the intranet. (Annexure 6)

1. The applicant's solicitor also deposed that on 13 May 2025, the Authority confirmed by phone that each of the emails sent on 23 May 2018 and 1 June 2018 were sent to all staff who worked at the IAA, including reviewers[10].

1. The grounds of review advanced by the applicant invite some explanation of the nature and scope of the framework within which the Authority was required to undertake its review of the delegate's decision.
2. The Authority's review of a delegate's decision was required to be undertaken in accordance with the "fast track" review process set out in Part 7AA of the Act. That process applied to persons who entered Australia as irregular maritime arrivals between 13 August 2012 and 1 January 2014 and who had not been taken to a regional processing country. It applied to those, like the applicant, who were subsequently invited to apply for a temporary protection visa or SHEV.
3. The source of the Authority's duty to conduct a review of a delegate's decision is found in s 473CC of the Act:

(1) The Immigration Assessment Authority must review a fast-track reviewable decision referred to the Authority under section 473CA.

(2) The Immigration Assessment Authority may:

a. affirm the fast-track reviewable decision; or

1. remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.

1. The explanatory memorandum which accompanied the introduction of Pt 7AA into the Act noted that the Minister (or delegate) would refer certain decisions made in relation to fast track applicants to the Authority, which would then "conduct a limited review" of those decisions.
2. As to the nature of that limited review, the High Court observed in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 (Plaintiff M174/2016) at [17]:

[T]he Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority [...] is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. (emphasis added)

1. The review function of the Authority is constrained by the provisions of Pt 7AA. Section 473DA provides that Div 3, Pt 7AA of the Act, together with ss 473GA and 473GB, is taken to be an "exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by" the Authority. Those provisions modify the usual requirements for procedural fairness, and any conduct of or discretion exercised by the Authority must be measured against those modified requirements.
2. Consistent with the objective of a fast-track review on the papers, Pt 7AA emphasises that there is no duty on the Authority to conduct a hearing or request new information from the applicant[11].
3. However, the Authority is vested with discretions which enable it to consider additional material and to make relevant enquiries in certain prescribed circumstances. Relevantly, s 473DC provides as follows:

(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a) were not before the Minister when the Minister made the decision under section 65; and

(b) the Authority considers may be relevant.

(2) 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 by any other person, or in any other circumstances.

(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a) in writing; or

(b) at an interview, whether conducted in person, by telephone or in any other way.

1. The Authority's exercise of any statutory discretion - whether it be to request further information, to issue an invitation for a fast-track applicant to attend an interview or to conduct a hearing - is subject to the implied condition that it must be exercised reasonably. However, as the Federal Court explained in BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [71]:

[71] Part 7AA modifies (by restricting) the common law principles of procedural fairness. The analysis of what might be an unreasonable exercise of, or failure to exercise, a discretionary power contained in Part 7AA must proceed against the statutory context, which includes that modification. Whilst the legislature is taken to have intended that a discretionary power will be exercised reasonably (Li at [63], per Hayne, Kiefel and Bell JJ; [88], per Gageler J), that which is reasonable is informed by the subject matter, scope and purpose of the legislation under which it is conferred. Part 7AA requires the Authority to review a decision and to conduct that review on the basis of the "review material" and, subject to the statutory exceptions contained in Part 7AA, without obtaining "new information" or affording the referred applicant a hearing. The reasonableness of an asserted failure to consider a discretionary power to disclose material to the referred applicant, and the reasonableness of the exercise of the discretion itself, must be assessed against that statutory scheme. (emphasis added)

1. By ground 1, the applicant contends that the Authority's failure to have regard to the most recent DFAT report available at the time of its decision was legally unreasonable, and/or stultified its statutory task under s 473DC of the Act.
2. The timing of events is critical. It will be recalled that the Minister's delegate decided to refuse to grant the visa on 21 September 2017. The delegate referred to Sri Lanka - Country Information Report published by DFAT on 24 January 2017 (2017 Report) throughout the decision. The application was referred to the IAA on 3 October 2017. The applicant made submissions to the IAA on 21 October 2017. Nearly 7 months later, on 23 May 2018, DFAT published its Sri Lanka - Country Information Report (2018 Report). The Authority made its decision to affirm the delegate's decision on 4 June 2018.
3. The 2018 Report was not in the materials referred to the Authority, and could not have been, because it was published after the delegate's decision. The Authority's 4 June decision does not contain any reference to the 2018 Report, although the reasons do reveal consideration and extensive referencing of, amongst other things, the 2017 DFAT Report.
4. The applicant submits that the Authority either failed to consider exercising its power to consider new information under s 473DC, or considered exercising the power but unreasonably decided not to. The applicant contends that the former is more likely, as it is difficult to imagine that the decision maker would choose not to consider the 2018 Report if it had known about it. However, in either scenario, the applicant submits that the Authority's failure to consider the 2018 Report lacked any intelligible justification and is therefore legally unreasonable. In BDI17 v Minister for Immigration & Anor [2018] FCCA 2162, the court found the Authority's failure to consider getting the most recent DFAT report to be jurisdictional error.
5. The applicant submitted that the existence of the 2018 Report was explicitly drawn to the Authority's attention. The applicant submits that it can be inferred that the Authority's decisionmaker was aware of the 2018 Report existing, having been alerted to its existence on two occasions:

(a) first, 12 days prior to the date of the decision by way of internal email, which was marked as high importance and had the subject line: 'DFAT Country Information Report on Sri Lanka - 23 May 2018'[12]; and

(b) secondly, 3 days prior to the date of the decision by way of internal email from Library Services, which attached the latest issue of the Library's 'Migration Current Awareness Bulletin', again referring to the 2018 Report. That Awareness Bulletin expressly noted that "[t[his updated Country information report replaces the previous DFAT report released on Sri Lanka published on 24 January 2017".

1. The applicant relies on DXP18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 774 (DXP18) for the proposition that a failure to have regard to the most recent country information is legally unreasonable where there are material differences between the current and previous report. The applicant submits that if the 2018 Report had been considered, it might have resulted in a different decision on the review.
2. Counsel submits that the 2018 Report differs from the 2017 Report in a number of areas which are material to the applicant's protection claims, namely:

(a) The 2017 Report under the heading "Monitoring, harassment, arrest and detention" consisted of two paragraphs ([3.8]-[3.9]) and stated "DFAT assesses that monitoring and harassment of Tamils in day-to-day life has decreased significantly under the Sirisena Government.". Whereas the corresponding section of the 2018 Report had expanded to five paragraphs ([3.8]-[3.12]), and was more guarded in its discussion of improvements under the Sirisena Government, indicating "DFAT assesses that, while monitoring of Tamils in day-to-day life has decreased significantly under the current government, surveillance of Tamils in the north and east continues, particularly those associated with politically sensitive issues". The applicant submits that had the Authority had properly considered the 2018 Report, as a matter of reasonable conjecture, it would have accepted the applicant (as a Tamil from the north) had a greater risk of surveillance and harassment and found him to be a refugee.

(b) Secondly, under the heading "Detention and Prison" the 2017 Report explained over two paragraphs ([4.25]-[4.26]) that generally "prison conditions in Sri Lanka do not meet international standards because of a lack of resources, overcrowding and poor sanitary conditions". The 2017 Report estimated that the prisoners in the system were about 60% over capacity. Addressing similar issues, the 2018 Report over four paragraphs, stated that "statistics from 2016 estimate that the number of prisoners...exceeds prison capacity by around 49 per cent. In 2016, the UN Special Rapporteur...estimated prisons were up to 300 per cent over capacity". The applicant therefore submits that it was open for the IAA, on this information from the 2018 Report alone, to find that the overcrowding was so extreme that any period of detention in those circumstances constituted "significant harm" and that it was open to the IAA to infer the existence of "an intention by the Sri Lankan authorities to inflict severe pain or suffering, or to cause extreme humiliation" that it had otherwise discounted.

(c) Thirdly, the applicant points out that the following passage in the 2018 Report does not appear in the 2017 Report:

(d) 4.20 Although Sri Lankan law prohibits arbitrary arrest and detention, it does not explicitly provide persons under arrest and detention the right to a lawyer or interpreter, or an obligation to inform family of an arrest.

(e) The applicant submits that this additional information in the 2018 Report challenges the Authority's finding that if he is charged: "[t]here is nothing to suggest one of his family members still living in Point Pedro would not be able to act as guarantor, if required". It is submitted that 2018 report might have informed a finding that if the applicant is arrested on return, the applicant's family may not even be informed of his predicament.

1. The Minister submits that ground 1 is not made out due to the differences in the 2017 and 2018 Reports being insignificant in the assessment of the applicant's claims, and/or that any error would be immaterial.
2. The Minister submits that unreasonableness must be assessed by reference to the terms, scope and purpose of the statutory source of power. In this case, the statutory scheme established a default position that the review is to be conducted on the papers without accepting or requesting new information, subject to very limited circumstances.
3. It is submitted that the Authority was under no obligation to get or consider information which did not form part of the referred materials. Further, even if the Authority did consider exercising its discretion to get the later report pursuant to s 473DC and decided not to do so, the Minister submits that the Authority was not required to give reasons for the exercise or non-exercise of that procedural power. A failure to mention exercising the discretion cannot form the basis of an inference that consideration was not given to exercising it[13]. The Minister submits that there is no basis to find that the Authority did not consider exercising that power to obtain information.
4. The Minister seeks to distinguish DXP18 from the circumstances in this case. In DXP18, an Iranian applicant claimed that they had abandoned Islam for Christianity and that they feared being charged with apostasy and being executed. The Authority relied on an earlier DFAT report which stated that it was highly unlikely that Iranian authorities would monitor religious observance, and stating that the last known time the death penalty was carried out was in 1990. The Authority accepted that the applicant had posted Christian material on Facebook but found that there was no more than a remote chance that authorities were monitoring their Facebook account. Judge Ladhams in that case identified that the newer DFAT report stated that while death sentences in apostasy cases are rare, Iranian courts in 2017 upheld a decision to sentence a man to death for apostasy after he had made social media posts considered critical of Islam.
5. The Minister contends the differences between the earlier and later DFAT reports in DXP18 were highly relevant and plainly material to the applicant's claims to fear harm. The Minister conceded that it was open to the Court in that case to conclude that the failure to take into account the later DFAT Report was unreasonable because the more recent information directly informed the basis of the applicant's fears that authorities would monitor religious activity and that he might be arrested, charged and punished for apostasy. The Minister accepted that more recent DFAT report fundamentally altered the earlier assessment that monitoring of religious activity was highly unlikely.
6. By comparison, the Minister submits that the differences between the 2017 and 2018 Reports in the present case are nowhere as significant and do not reach a threshold of materiality.
7. First, the information in the 2017 Report about the risks of being harassed, detained and mistreated is substantially the same as that in the 2018 Report.
8. Secondly, the Authority found that the applicant was an illegal departee. The Authority found that upon return to Sri Lanka there was a risk that the applicant would be held at a CID office at the airport for 24 hours and possibly in a prison for a short period (at most a few days[14]) until a Magistrate became available. The Authority accepted that prison conditions in Sri Lanka were poor, but concluded that any treatment the applicant would experience during a short imprisonment would not amount to serious harm or significant harm.
9. While acknowledging that the 2018 Report contains expanded detail in relation to prison overcrowding in Sri Lanka, the Minister submits that the difference is not significant and would not have affected the findings it made. In its more recent 2018 Report, DFAT estimated prison overcrowding exceeded capacity by about 49% (cf. 60% in the earlier report), but noted a 2016 estimate by the UN special Rapporteur that overcrowding might be up to 300% over prison capacity. The Minister submitted that the additional information in the 2018 Report would not alter the risk profile for the applicant, nor can those changes provide a basis for inferring that the authorities had an actual subjective intention to inflict harm.
10. Thirdly, the Minister submits that while part of the 2018 Report concluded that there was no explicit legal duty which required authorities to inform family members of a person's arrest, the information in both reports[15] show, once a matter is brought before a court, family members often act as guarantors. The Minister contends that this necessarily implies families are routinely notified.
11. Finally, in relation [5.42] of the 2018 Report which states that returnees 'may' face some societal discrimination upon return, which 'could' affect their ability to secure housing and employment, the Minister submits that this information was not required to be considered by the Authority, as it was new information in respect of which the Authority found at [6] that s 473DD was not satisfied.
12. At [27] of his written submissions, counsel for the Minister concluded:

The above analysis reveals that, in contrast to DXP18, none of the country information identified by the Applicant in the 2018 DFAT report was significant in the Authority's assessment of his claims. In light of the statutory scheme, which provides for a limited review and a default position of not accepting or obtaining new information, a decision by the Authority not to get, or consider getting, the 2018 DFAT [report], released very shortly before its decision was handed down, was not unreasonable. Further, the insignificance of the differences between the two reports means any error was immaterial as its consideration could not realistically have resulted in a different outcome. Ground 1 is not made out.

1. Part 7AA of the Act emphasises that there is no duty on the Authority to conduct a hearing or request new information from the applicant. However, in s 473DC the Authority is vested with discretions which enable it to consider additional material and to make relevant enquiries in certain prescribed circumstances.
2. The Authority must exercise the discretion in s 473DC reasonably.[16] It is plainly open to the Court to find that an unreasonable failure to consider information which ought to have been considered can give rise to jurisdictional error, even if the decision-maker was not bound by legislative instrument to take the information into account.
3. In CVZ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 481 (CVZ17), Judge Humphreys of this Court considered another case where a Sri Lankan applicant alleged that the Authority had fallen into jurisdictional error by failing to consider the most recent DFAT country information. In relation to the principled approach to a case such as the present, his Honour said at [37]-[38]:

[37] In some circumstances it may be unreasonable for the Authority not to seek, or consider seeking, the most recent DFAT country information report regarding an applicant's country of reference: (see; BDI17 v Minister for Immigration [2018] FCCA 2162 at [70] - [72]; BND18 v Minister for Immigration [2019] FCCA 2218 at [49]). The decision as to whether it would be unreasonable for the Authority not to seek such report, depends, in part upon whether the updated DFAT report differs in its conclusions from a previous DFAT report: (see; BHX18 v Minister for Home Affairs [2018] FCCA 3498 at [52], [78](c) and [81]). Further, it is not necessarily an error for the Authority to rely on old DFAT report where the old report is not contradicted or rendered unreliable by the new report: (see; AYC18 v Minister for Immigration (No 2) [2020] FCCA 1637 at [103], [107]).

[38] The Authority's reasons for its decision does not expressly state that it considered seeking the 2017 report. However that does not, of itself, support an inference that the Authority did not consider exercising that discretion, because the Authority is not required to record in its reasons whether it has considered exercising a procedural discretion: (see; CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [42]).

1. The onus is on the applicant to establish that the Authority did not consider exercising its discretion to seek the 2018 Report. In CVZ17, the applicant failed to do so.
2. As in CVZ17 at [37], the Minister submits that in circumstances where the 2018 Report was not contained in the referred material, the applicant can only succeed if he can demonstrate that the Authority's failure to obtain the 2018 Report pursuant to s 473DC(1) was unreasonable[17].
3. As to the availability of the 2018 Report, I am satisfied on the evidence that it was brought to the attention of IAA reviewers on 23 May 2018 and 1 June 2018, respectively 13 days and 3 days prior to publication of the Authority's decision record. I infer that by the time the publication of the 2018 Report was made known, the Authority had already undertaken and possibly completed consideration of the applicant's claims and had probably written much of its reasons. I may be wrong about that, but given the matter was referred to the IAA in October 2017, I expect much of the Authority's work was "in the can" before late May and before release of the more recent report.
4. The Authority's reasons extensively footnote the 2017 Report and it factored significantly in a number of the Authority's findings. When the reasons are read fairly and as a whole, I am not satisfied that the Authority considered or even turned its mind to obtaining the 2018 Report. In my view it was unreasonable for the Authority not to have done so.
5. Consideration of the most recent available country information is a core aspect of the decision-maker's task. In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (MZYTS), the Full Court considered whether a failure to consider the most recently available information was a jurisdictional error. The court observed at [73] - [74]:

[73] Whatever might be the general principle that administrative decision-making should be based on the most up-to-date information (see Peko-Wallsend at 45) in the context of decision-making about s 36(2)(a) of the Migration Act and Art 1 of the Convention, attention to current information is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction. This is, as we have endeavoured to explain, because of the predictive and speculative nature of the task involved in determining whether a person's fear of persecution for a Convention reason on return to her or his country of nationality is well founded.

[74] That is not to say that decision-makers cannot rely on information which is several years old. They may do so lawfully as part of a weighing process after considering all information available to them, and deciding which information best and most reliably supports the prediction of future risk they are called on to make. Perhaps more recent information simply confirms older and more detailed information. Perhaps more recent information is from less reliable, or tainted, sources. There are many possibilities about why a decision-maker may choose, lawfully, to rely on all the information and still perform the task required by s 36(2)(a) and Art 1. In such cases, one would expect the Tribunal's reasons to disclose this kind of evaluation process, and the conclusion it reached would be within its jurisdiction.

1. As the Full Court held in MZYTS it is not necessarily an error for a decision-maker to rely on an old report, particularly where the old report is not contradicted or rendered unreliable by a new report. However, where a new report is known to be in existence, one would expect to find some explanation from the decision-maker as to why the later report was not considered or why the earlier report was preferred.
2. In the present case there are a number of matters which lead me to the conclusion that the Authority's failure to obtain or consider obtaining or its failure to consider the 2018 Report was unreasonable.
3. First, I infer that the Authority was aware or ought reasonably to have been aware that a new DFAT report for Sri Lanka had been published and was accessible. In its terms the 2018 Report expressly replaced the earlier 2017 Report. Decisions of the Authority routinely rely on DFAT country information and I would be extremely surprised if members of the Authority were unaware of or not on the lookout for the most recently published report.
4. Secondly, as I have said, it is plain from the Authority's reasons that the 2017 Report informed many of its findings. The report itself formed part of the materials referred to the Authority and it was extensively footnoted in support of the findings made. The relevance of contemporary country information to the assessment of the applicant's claims for protection should have been starkly apparent to the decisionmaker.
5. Thirdly, and if not more importantly, a primary purpose of DFAT country reports is to inform decision-makers with respect to protection visa applications. That purpose is reinforced by the mandatory requirement in Ministerial Direction 69 for delegates and the Administrative Appeals Tribunal to take the most current reports into account. That Ministerial Direction does not apply to the Authority[18] per se, but the inherent importance and weight of current country information should be self-evident to any decision-maker undertaking a de novo review of a protection visa refusal.
6. Fourthly, I infer from the reasons that the Authority did not get or consider getting the more recent DFAT report. If it had done so, I would have expected the reasons to make mention of it and to explain why the 2018 Report was not taken into account or given weight. If the Authority had for example found that 2018 Report contained no material changes to the earlier publication, I would have expected the Authority to say so.
7. Finally, even though the 2018 Report had only been published days before the Authority published its reasons, there is no reason why the decisionmaker could not have checked their draft reasons against the new report. In my view a diligent decisionmaker would have done so, just as a judge might be expected to check the currency of legislation before delivering judgment. Given the constantly evolving political, economic, legal and social conditions in receiving countries and the potentially serious consequences of an unfavourable decision for applicants, I do not consider that checking for the most recently published DFAT report imposes an unrealistically exacting standard.
8. The requirement for the Authority to be informed by the best available information about what is happening in the receiving country is central to the discharge of its statutory task. As the Full Court observed in MZYTS at [38]:

That task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground in Zimbabwe for him if he were to be returned there. While it is most certainly the case that "[i]t is for the applicant to advance whatever evidence or argument she [or he] wishes to advance in support of her [or his] contention that she [or he] has a well-founded fear of persecution for a Convention reason", the Tribunal "must then decide whether that claim is made out": Abebe v Commonwealth (1999) 197 CLR 510 at [187]. Evidence and material about what it was like for "ordinary" MDC supporters and members in 2002, or 2007, or 2010 might give the most accurate picture, but that decision could only be made by the Tribunal after evaluation of all the pertinent material put forward by the visa applicant in support of the specific claim (and, of course, any contradictory information to which the Tribunal chose to make reference), including the most recent material and a decision about whether or not things had changed, were changing, were likely to change or had stayed much the same. The evaluation, in the context of a country like Zimbabwe and in the context of the very specific terms of the visa applicant's claim, needed to include consciousness about the cycle of political violence around foreshadowed and/or actual elections, and other circumstances particular to both the visa applicant and to his country of nationality. This much is clear from the decision of the High Court in S395. [Emphasis added]

1. In APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23, Markovic J found that it was not legally unreasonable for the Authority not to have considered the most recent DFAT report. But in that case, there was no evidence that the Authority had actual or constructive knowledge of the new report. In this case I am satisfied that the report was squarely drawn to the attention of the Authority's decision-makers.
2. In DXP18, Judge Ladhams found that an updated DFAT report had been published about a month before the Authority's decision. Her Honour found that although the Authority was not bound by Ministerial Direction to have regard to the most recent country information, where the Authority had knowledge that a new report had been published it was unreasonable not to consider whether to get that new information as differences between the earlier and later reports may have been relevant to the applicant's claims.

[84] ... [I]f the Authority, having notice of the existence of the 2018 DFAT report, failed to consider whether to exercise its discretion in s 473DC of the Migration Act to get a copy of the report for the purpose of the review, that failure was unreasonable. Alternatively, if the Authority did consider the exercise of its discretion and decided not to obtain a copy of the 2018 DFAT report, that decision was also unreasonable.

[85] I acknowledge that, unlike the delegate, the Authority was not bound to have regard to the most up-to-date country information published by DFAT. That is because Ministerial Direction No 56, which was in effect at the time of the Authority decision, does not apply to reviews conducted by the Authority. I also acknowledge that, pursuant to s 473DC(2), the Authority was not obliged to consider the exercise of its discretion to get new information. Nevertheless, basing decisions on up-to-date country information is important in the consideration of claims for protection. The country reports published by DFAT are published for the purpose of assisting in the consideration of claims for protection. A period of nine months had passed since the delegate's decision and it had been over two years since the 2016 DFAT report had been published. In these circumstances, and where the Authority had knowledge that a new report had been published a month before its decision, it was unreasonable for the Authority not to consider whether to get new information that may be relevant to its review, being a copy of the 2018 DFAT report.

[86] If the Authority did consider the exercise of the discretion and decided not to get a copy of the 2018 DFAT report, that also would have been unreasonable taking into account the claims for protection raised by the applicant and the differences in the information in the 2016 and 2018 DFAT reports that may have been relevant to those claims.

1. In FQF17 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1431 (FQF17) I found that the Authority acted unreasonably in failing to take into consider a DFAT report which had been published after an application had been referred to the Authority for review. In that case, submissions made by the applicant to the IAA made express reference to a more recent report than the one considered by the delegate in refusing the visa. In FQF17 I found that the circumstances were akin to those in DXP18 in that where the decisionmaker has knowledge of a more recent report, it was unreasonable not to consider that report in order to ascertain whether it contained differences which might be relevant to the assessment of the applicant's claims.
2. Unreasonableness in the exercise or non-exercise of discretion will only amount to jurisdictional error if there is a realistic possibility that the Authority's decision could have been different had the error not occurred: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (LPDT) at [7]. The materiality of the error informs this question.
3. As mentioned earlier, the applicant submits that there are material differences between the 2017 and 2018 reports which, if considered, might (not would) have led to a different assessment of the applicant's claims. As to the possibility of a different result, the standard of reasonable conjecture is undemanding[19].
4. The Authority's task on a review is to be informed by country information as part of its own independent de novo assessment of the applicant's claims and his fear of harm. That independent assessment requires the Authority to engage in a predictive and speculative consideration of the circumstances to which an applicant might be returned. Subtle and nuanced shifts in available information from one report to another can impact that predictive assessment.
5. The difference between the 2017 and 2018 DFAT reports regarding improvements under the Sirisena government in Sri Lanka is an example. Paragraph [3.9] of the earlier report noted that monitoring and harassment of Tamils in day-to-day life had decreased significantly under the new Sirasena government. However, 18 months later, paragraphs [3.8] to [3.12] paint a clearer but less positive picture. While repeating that monitoring and harassment of Tamils in day-to-day life had decreased significantly under the new government, DFAT cautiously added "...surveillance of Tamils in the north and east continues, particularly those associated with politically sensitive issues." DFAT also noted reports from communities in the north and east of the country regarding monitoring of public gatherings, targeted surveillance and questioning of individuals and groups.
6. It was always part of the applicant's claims that he feared harm as a Tamil from the North. I cannot exclude the realistic possibility that the 2018 Report, if it had been considered by the Authority, could have impacted the assessment of the claims raised by the applicant. I find that the error was material and therefore jurisdictional.

1. The applicant contends that the Authority fell into error by failing to consider a claim or integers of a claim, namely a claim that he would face a real chance of persecution if he was returned to Sri Lanka and openly expressed his genuinely held but hitherto concealed political views.
2. The delegate found that the applicant had a genuine commitment to the cause of the LTTE throughout his life. The delegate found that the applicant had an early association with the LTTE when he was growing up and that he maintained that association while he was working in a business run by a member of the LTTE. The delegate also accepted that the applicant had a genuine commitment to Prabhakaran, the leader of the LTTE, and a genuine antipathy toward the Sri Lankan government because of their treatment of Tamils in Sri Lanka. Relevantly, the delegate also found that despite this level of commitment to the cause of the LTTE, the applicant had concealed this commitment in order to avoid harm from the Sri Lankan authorities because of his political views.
3. The applicant contends that these findings give rise to an implied claim that the applicant would face a risk of serious harm if he were to cease modifying his behaviour in order to avoid harm. In other words, it is submitted that the Authority should have recognised from the delegate's findings that any open disclosure of his political views would subject the applicant to a substantial and significant risk of harm from those who oppose his views.
4. The applicant submits that it should have been obvious to a competent decision-maker that suppression of his political views had been an act of self-preservation and that his conduct was motivated solely by fear. It is submitted that the unexpressed but implied claim to fear harm as a result of his political beliefs gave rise to an obligation on the Authority to review that claim. Any failure to consider that claim constitutes jurisdictional error.
5. In support of this argument, the applicant cited CTY15 v Minister for Immigration and Border Protection [2019] FCA 197, a case where both the delegate and Tribunal failed to consider whether the Iranian applicant would continue to comply with the required dress code should she return to Iran because of fear of harm. The court there found that the decision-makers failed to assess the implied claim to fear persecution as a member of the social group of women who do not wish to abide by Islamic extremism including the dress code.
6. In relation to the identification of an implied claim, Perry J said at [49]:

Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

1. The applicant submitted that the claim is so obvious that it did not need to be stated explicitly for it to be understood by a recently competent decision-maker. However, the Authority made no finding at all on whether the applicant's political beliefs were genuinely held, and nowhere in its reasons did it contemplate the possibility that the applicant had avoided harm arising from those views by modifying his behaviour. It is submitted that the Authority erred by failing to consider whether the applicant faced a risk of serious harm if he ceased suppressing his long held commitment to the LTTE.

1. The Minister argues that the applicant's "implied" claim to fear harm from openly expressing commitment to the LTTE cause is not clearly articulated and does not clearly emerge.
2. In any event, the Minister submits that the Authority was also entitled to assume that the claim of needing to conceal his political views on return was not being pressed, having regard to the way the applicant presented his case over time. This claim was pressed before the delegate, but not the Authority, despite the applicant being aware of the delegate not finding favourably for the applicant in relation to those matters. The Authority was not required to consider every permutation of matters in the delegate's decision record, in circumstances where a matter is not pressed by the applicant before the Authority. Further, the applicant was represented throughout the proceedings. The Authority invited him to make submissions, and those submissions did not address this issue. The Minister submits that if this claim was so obvious, it would have been expressly stated.

1. In conducting its de novo review of the delegate's decision under the Part 7AA fast-track process, the Authority has a duty to conduct its review on the referred material, which includes the delegate's statement of reasons and any new information properly received.
2. It is well settled that in a protection matter, the Authority must look at every claim and every integer of the applicant's claims[20]. The Authority was required to consider each of the claims for protection expressly articulated by the applicant as well as claims that are not expressly articulated but which clearly emerged on the materials before the Authority[21]. The obligation to do so is not relieved by the fast-track process.
3. In determining whether a claim "clearly emerges", the following principles were articulated in AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 at [18]:

(a) such a finding is not to be made lightly;

(b) the fact that a claim might be said to arise from materials is not enough;

(c) to clearly emerge from the materials, the claim must be based on "established facts";

(d) while there is no precise standard to determining whether an unarticulated claim has been "squarely raised" or "clearly emerges" from the materials "a court will be more willing to draw the line in favour of an unrepresented party"; and

(e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant's claims are presented over time.

1. The claims made by the applicant must be considered in light of the basis upon which the application was made, "not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process"[22]. It is not for the Court to "ferret around and construct a claim when none has been made", especially when the applicant is represented by a migration agent or legal practitioner.
2. It is uncontroversial that on judicial review the applicant assumes the burden of persuading the Court that there was a failure to deal with a claim or consider a matter the Authority was obliged to consider, or to make the finding of jurisdictional error for which he or she contends[23]. Ultimately, whether a decision-maker failed to consider a matter is a question of fact.
3. The question of whether the Authority has discharged its statutory task is to be answered primarily through the lens of the Authority's reasons. In MZYTS at [49] the Court said:

The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made. Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present - and what is absent - from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf 206 CLR 323 at [10], [44], [69].

1. However, the reasons of the Authority must be read fairly and as a whole and not "with an eye keenly attuned to the perception of error"[24]. The Authority is not required to record generally "what it did" in conducting its review, nor is it required to describe every step taken or refer to every piece of evidence in conducting its review.
2. Where a matter is not referred to in a decision-maker's reasons, there are two obvious hypotheses. One is that the omission of the matter from the reasons indicates that the decision-maker did not consider the matter at all. The other is that the decision-maker did consider the matter but did not consider it material. It is important to recognise that there is a distinction between these possibilities[25] and that the absence of a reference to material in the reasons does not of itself give rise to one inference or the other.
3. A decision-maker can, quite properly, consider a matter by thinking about the matter (including the appropriate weight to attribute to such a matter) without making any findings[26]. The fact that a matter is not mentioned in a statement of reasons does not mean that it was not considered[27]. A failure to advert to the content of particular evidence may simply indicate that the decision-maker did not consider the matter to be material[28]. Where it is apparent that a decision-maker has read a document, the inference that he or she has overlooked or not properly considered a particular part is difficult to draw[29].
4. The delegate's reasons formed part of the material given by the Secretary to the Authority under s 473CB of the Act. That is evident from paragraph [2] of the reasons where the Authority identifies the delegate's decision and some of the findings made by the delegate in relation to the applicant's protection claims. Accordingly, there can be no doubt that the Authority had the delegate's reasons and details of what the delegate considered.
5. At [4] of its reasons, the Authority notes that it received and considered a submission from the applicant. The Authority explains that it had regard to the applicant's arguments insofar as they engaged with the delegate's reasons. The Authority noted that the applicant restated the claims he made to the delegate and included new information. The applicant's submissions did not make reference to or address the so-called implied claim. The applicant's submission did not set out any claim about his commitment to the LTTE cause, or claim that he would need to conceal his views if returned to Sri Lanka.
6. Where it is alleged that a decision-maker failed to consider a claim, the applicant bears the onus of establishing the failure on the balance of probabilities. For this ground to succeed, the applicant must first satisfy the court that the alleged implied claim clearly emerged from the materials and then satisfy the court that the decision-maker failed to consider it. The applicant has not persuaded me on either count.
7. In my view, if the applicant claimed to fear harm as a result of openly stating his political views after return to Sri Lanka, he would have made that claim from the outset and pressed it. The applicant was legally represented, but even with the assistance of lawyers the claim was not expressed. If the implied claim so obviously arose from the delegate's findings, that could have been made known in the applicant's submissions to the Authority. Having regard to the criteria spelt out in AYY17, it is not enough for the applicant to establish that the claim might have arisen from the materials.
8. Further and in any event, I am not persuaded that the so-called implied claim was not considered. Reading the Authority's reasons as a whole, it seems to me that the Authority evaluated the applicant's claimed links with the LTTE and rejected many of them, including that the applicant had been severely mistreated by authorities or that he was of any interest to them. In light of its findings, I find it equally plausible that implied claim was considered by the authority but rejected as immaterial.
9. Ground two has not been made out.

1. By this ground, the applicant alleges that the Authority failed to complete its statutory task and/or misconstrued or misapplied s 473DD of the Act in its assessment of the new information provided by the applicant.
2. It will be recalled that at [5] of its reasons the Authority identified new information which was included in the applicant's submissions. Apart from a video of the North Chief Minister stating that it is not safe for asylum seekers to return to Sri Lanka, the new information was:

• that the applicant was a LTTE member, his LTTE name was [redacted], he had undergone basic training, Sea Tiger training at Point Pedro and monitoring training while in the Vanni after being sent there by the LTTE to monitor those entering the Vanni. His work was very secretive and he did not know who his colleagues were or what they did and they did not know anything about him. The second camp the authorities forced his family to go to was where those identified with LTTE links were sent and he was only released with the help of the ICRC on 10 October 2010;
• he will suffer significant economic hardship because of harassment by authorities if he returned to Sri Lanka and that he belongs to a particular social group comprising LTTE members;
• he will be forced to go into rehabilitation if returned and that he believes he is on a "watchlist" because of his association with the LTTE;

1. The Authority must not consider new information unless that information meets the criteria prescribed by s 473DD of the Act:

473DD Considering new information in exceptional circumstances

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. At [6] of its reasons, the Authority assessed the new information with a view to determining whether exceptional circumstances existed to justify its consideration. The Authority found that the applicant's claims that he was an LTTE member, underwent Sea Tiger and monitoring training, would suffer economic hardship as part of a particular social group comprising LTTE members, would be sent to rehabilitation and is on a watchlist were all "unsupported". Further, the Authority found that the claim regarding the applicant's family being placed in a camp for those with LTTE connections was, on its face, "inconsistent" with UNHCR documentation which had been provided to the delegate. For those reasons, the Authority found that it had not reached a state of satisfaction that exceptional circumstances exist to justify consideration of the new information.

1. The applicant alleges that the Authority erred in its assessment of certain new information against s 473DD(b)(ii), including claims that he was in fact an LTTE member and that he had undergone Sea Tiger and monitoring training. The applicant submits that the Authority's task under that section was to assess whether new information was credible personal information in the sense that it was "capable of being believed"[30].
2. The applicant submits that the Authority's analysis of the new information at [6] focused on whether the information could have been provided before the date of the delegate's decision, but did not sufficiently consider the credibility of the information relating to his claimed LTTE membership and training. The Authority determined that these claims were not "supported".
3. The applicant submits that the Authority's finding the claims were not corroborated by other material was effectively a dispositive finding and that, by taking this aproach, the Authority imposed a higher standard of satisfaction than is prescribed by s 473DD(b)(ii)[31]. The essence of the applicant's case is that the Authority was required to assess only whether the information was "capable of being believed", not whether it was objectively proven.
4. The applicant submits that the Authority erred in the way it did in BTK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 658 (BTK19). In that case, the court found that Authority failed to apply the test in s 473DD(b)(ii):

[68] ... [T]he finding at [14] that the Authority "consider[ed] it somewhat convenient the applicant has presented these unsupported claims to the IAA only following the refusal of his SHEV application" (emphasis added) again falls well short of a finding that the new information was not capable of being accepted and therefore was not credible for the purposes of s 473DD(b)(ii)

1. The applicant says that the Authority's misconstruction and misapplication of s 473DD(b)(ii) was material to the overall outcome of the review, because if the Authority had applied the correct test, it could have found that his claims were capable of being believed and that there were exceptional circumstances to justify consideration of the new information. If the Authority had admitted the new information, it was then open for it to deal with the information in a variety of ways, including by asking the applicant to provide information that did support or corroborate those claims in the exercise of its powers under s 473DC.

1. The Minister says that the ground is meritless and relies on the well settled principle, that the reasons of an administrative decision makers are not to be construed minutely and finely with an eye keenly attuned to the perception of error[32].
2. The Minister submits that after setting out the applicant's new information at [5], the Authority at [6] rejected the applicant's explanation as to why he had not earlier mentioned what he claimed was the true extent of his involvement with the LTTE. The Minister submits that read fairly and in context, the Authority's rejection of the applicant's explanation for why these claims had not been made earlier and its finding that they were unsupported, should be read to mean that the claims were not credible and not capable of being believed. The Minister submits that the Authority was not required to use the exact words "capable of being believed".
3. The Minister submits that this case can be distinguished from BTK19, as the Authority's finding in that case concerned its view about the convenience of the timing of presenting the new claims. That is distinguishable from the present case, where the Authority made a finding about the claims which, read fairly and in context, amounted to a finding that the new information was not credible.
4. The Minister further submits that CBY18 v Minister for Home Affairs [2024] FedCFamC2G 1417 (CBY18) is distinguished from this case. The Authority in CBY18 found that new information was not 'credible or corroborative' evidence to support a particular claim, and the court found that inclusion of "corroborative" imposed a higher standard of satisfaction than s 473DD(b)(ii) requires. Whereas in this case, no such issues arise, the Authority did not use the word "corroborative", nor do its reasons reveal that it imposed a more stringent test.

1. In AUS17 v Minister for Immigration and Border Protection [2020] HCA 37, the High Court held that the Authority must assess new information provided by a referred applicant first against the criteria in both s 473DD(b)(i) and (ii) of the Act, and if either or both of those criteria are met, by taking that circumstance into account in then assessing whether there are exceptional circumstances for the purposes of s 473DD(a). At [11]-[12] the plurality said:

[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.

[12] The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the other criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).

1. Whilst the Authority must engage with the criteria s 473DD(b) first, that engagement need not be formulaic. It will be sufficient if, in a particular case, the court on judicial review is able to infer from the Authority's reasons that it performed the requisite assessment against both paragraphs (b)(i) and (b)(ii). The key question for the court is whether the substance of the criteria prescribed by s 473DD(b) has been considered prior to a consideration of whether "exceptional circumstances" exist for the purposes of s 473DD(a)[33].
2. The assessment of new information against paragraph (b)(i) is relatively straight forward - it is temporal and is a question of fact - the only relevant question being whether the new information was not, and could not have been, provided to the Minister before the Minister made the decision.
3. On the other hand, the assessment of whether new information is "credible personal information" for the purposes of paragraph (b)(ii) is more nuanced. In CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (CSR16), Bromberg J at [42] stated that properly understood, what constituted "credible" for the purposes of s 473DD(b)(ii) was whether the information provided by the applicant was capable of being believed. His Honour observed that the decision of whether to consider new information was anterior to the so-called "deliberative stage" of decision-making. At the anterior stage, s 473DD did not require the Authority to determine whether the proposed new information would impact its decision, rather the enquiry was whether it could have.
4. This is to be distinguished from the deliberative stage of decision-making where the Authority may substantively consider the new information admitted under s 473DD, along with all other information before it, in reaching findings of fact necessary to determine whether to affirm or remit the decision to refuse the grant of a visa.
5. In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 294 FCR 150, a majority of the Full Court endorsed the approach taken by Bromberg J in CSR16 and found that the Authority could not undertake a "substantively evaluative process" at the anterior phase of decision-making. The decision on whether new information is admitted involves a different assessment and is to be undertaken before the substantive review.
6. The issue for the court is whether the Authority erred in its approach to the assessment of the new information. In my view it did not and the applicant has failed to establish jurisdictional error.
7. On a fair reading of the Authority's reasons at [6] it is apparent that the Authority applied the s 473DD(b)(i) and (b)(ii) filters to the new information almost simultaneously. It was certainly doing so ahead of any consideration of exceptional circumstances - which only occurred in the last line of [6], after the new information had been assessed against the s 473DD(b) factors.
8. In [6] the Authority questioned the timing of certain claims being raised, seeking to establish whether it was information which could have been provided earlier and before the delegate made his decision. In the second half of the paragraph, the Authority concludes that the various new claims raised by the applicant were "unsupported" which I see as synonymous with "not capable of being believed". In other words, the practical finding by the Authority was that there was nothing which would give the new information the weight of "capable of being believed".
9. I am satisfied on a fair and balanced reading of the reasons that the Authority did perform the requisite assessment of the new information against ss 473DD(b)(i) and (b)(ii). The engagement with those criteria need not be formulaic. The critical thing is that it be done and done before any consideration of exceptional circumstances under s 473DD(a).
10. The applicant has not established jurisdictional error. Ground 3 has not been made out and is dismissed.

1. For the reasons set out above, I find that the applicant has established jurisdictional error. By failing to get or consider getting the 2018 Report, the Authority did not assess the applicant's claims against the most recent available country information. The 2018 Report included information that Tamils from the north and east of the country continued to be subject to surveillance, particularly in relation to politically sensitive issues. That information, coupled with evidence that the applicant had an association with the LTTE, might have caused the Authority to assess risk differently and might have led to a different outcome on the review.
2. Grounds 2 and 3 have not been established.
3. The applicant is entitled to the relief sought in his Amended Application. Writs will be issued and the application will be remitted to the Administrative Review Tribunal for reconsideration according to law.
4. I will hear the parties on the question of costs.

I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes.

[3] Applicant's outline of submissions filed on 15 May 2025, [3].

[5] Applicant's outline of submissions filed on 15 May 2025, [3].

[9] Applicant's Outline of submissions, [3].

[11] See ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 (ABT17).

[13] DXP18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 774 at [77].

[15] DFAT Country Information Report Sri Lanka, 24 January 2017, p.106 [5.22]; DFAT Country Information Report Sri Lanka, 23 May 2018 p.51 [4.20], p.58 [5.32].

[16] Plaintiff M174/2016 at [21], [86], ABT17 at [3], [61], [80].

[17] See also, BND18 v Minister for Immigration [2019] FCCA 2218 at [48]- [54].

[18] DTH17 v Minister for Immigration & Anor [2018] FCCA 729 (DTH17); DEZ16 v Minister for Immigration [2018] FCCA 1317 at [52],[54]; BHX18 v Minister for Home Affairs [2018] FCCA 3498 at [44]- [45]; BND18 v Minister for Immigration [2019] FCCA 2218 at [50]; but see also BHX18 v Minister for Home Affairs [2019] FCA 705 per Rares J.

[19] See, Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 at [33]; and LPDT at [14].

[20] Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802 at [42].

[21] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [55], [68]; AYY17 at [18].

[22] Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 at [1].

[23] SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (SZGUR) at [67].

[24] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

[25] SZGUR at [31], MZYTS at [51].

[26] See Guclukol v Minister for Home Affairs [2020] FCAFC 148; (2020) 279 FCR 611 (Guclukol) at [41]-[53] and [55] (Katzmann, O'Callaghan and Derrington JJ).

[27] Minister for Immigration and Border Protection v EEI17 [2018] FCAFC 166; (2018) 261 FCR 461 at [49].

[28] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [5] (Gleeson CJ).

[29] See SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [27] (Heerey, Branson and Emmett JJ), SZGUR at [73] (Gummow J, with whom Heydon and Crennan JJ agreed at [91] and [92]), BRZ17 v Minister for Immigration and Border Protection [2019] FCA 677 at [47] (Moshinsky J).

[30] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 294 FCR 150, [77].

[31] See CBY18 v Minister for Home Affairs [2024] FedCFamC2G 1417, [59].

[32] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.

[33] APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79] per Markovic J.