DLW18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1252

1. On 4 July 2018, the applicant filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Immigration Assessment Authority (IAA) dated 14 June 2018. The IAA affirmed the decision of a delegate of the first respondent refusing to grant the applicant a Safe Haven Enterprise visa (SHEV) under s 65 of the Act.
2. For the reasons that follow, the application is dismissed.

1. In 2012, the applicant, a citizen of Sri Lanka with Tamil ethnicity, arrived in Australia as an unauthorised maritime arrival.
2. On 29 April 2016, the applicant lodged an application for a SHEV, claiming to fear harm if he returned to Sri Lanka.
3. On 24 August 2017, a delegate of the first respondent, after interviewing the applicant on 11 April 2017, made a decision refusing to grant the applicant a SHEV.
4. On 29 August 2017, the matter was referred to the IAA for review under Part 7AA of the Act (as it then was).
5. On 19 September 2017, the applicant's representative provided a submission and materials to the IAA.
6. On 14 June 2018, the IAA made a decision affirming the delegate's decision not to grant the applicant a SHEV.

1. The IAA at [3]-[8] considered whether, in light of s 473DD of the Act, it could consider the submission and materials provided by the applicant's representative to the IAA on 19 September 2017. The IAA concluded at [8] that, in relation to the new information in the submission and materials, "exceptional circumstances exist to justify considering the new information".
2. The IAA at [9] summarised the applicant's claims for protection. The applicant claimed that he worked for the LTTE in 2004 for a year, many of his family members were members of the LTTE, his entire family was seen as an LTTE family and, following his release from a camp by the Sri Lankan authorities in 2010, in and from September 2012 the Sri Lankan authorities commenced to have an interest in the applicant.
3. The IAA at [10]-[32] made factual findings. The IAA at [23] found that some of the applicant's family members were members of, or involved with, the LTTE, and the applicant worked for a division of the LTTE for a year from 2004. But the IAA at [24] rejected many other claims by the applicant concerning his family's links to the LTTE, finding that the applicant "has exaggerated and embellished his family's involvement with the LTTE and interest by the authorities". The IAA at [30] was "prepared to accept that in September 2012 [the applicant] was taken and detained by the SLA for a day before being released". But the IAA did "not accept ... that [this incident] was indicative of any particular interest in the applicant personally".
4. The IAA at [34]-[53] considered whether the applicant had a well-founded fear of persecution if required to return to Sri Lanka. The IAA at [37] was "satisfied the applicant is not at risk of harm from the authorities on the basis of his own or his family's connection to the LTTE". The IAA at [38] was "satisfied that if he is returned to Sri Lanka the applicant is not at risk of harm because of his own or his family connections to the LTTE". The IAA at [47], [48] and [52] accepted that the applicant may be briefly questioned and detained on return to Sri Lanka, but "the process of questioning and investigation itself does not amount to serious harm", and "the totality of the treatment that he will experience ... does not amount to serious harm". The IAA at [53] added that, upon considering the totality of the applicant's circumstances, the IAA was "not satisfied that there is a real chance of serious harm to the applicant if he is returned to Sri Lanka, either now or in the reasonably foreseeable future".
5. The IAA at [55]-[61] considered the complementary protection assessment in s 36(2)(aa). The IAA at [61] concluded that the applicant did not meet s 36(2)(aa).

Judicial review application and steps up to hearing on 17 July 2025

1. On 4 July 2018, the applicant filed an application in this Court seeking judicial review of the IAA's decision.
2. Following a period of inactivity, on 7 April 2025 the registry of the Court notified the parties that the matter was listed for hearing on 29 May 2025. By consent of the parties, the hearing date was changed to 17 July 2025.
3. On 7 July 2025, the applicant filed a written submission (AS). The submission advanced a single new ground not contained in the application filed on 4 July 2018. The ground was said to be contained in a proposed amended application attached to the written submission, but the proposed amended application attached to the submission did not contain the new ground. With leave of the Court granted at the hearing on 17 July 2025, following the hearing, the applicant's solicitor filed an amended application which contained the new ground (Amended Application). The new ground, numbered ground 5, was as follows (New Ground):

The Authority fell into jurisdictional error in dealing with the new information it received.

PARTICULARS

(a) Documents and submissions from the applicant's representative were sent to the delegate prior to the delegate's decision;

(b) There is no evidence that the delegate took the documents or submissions into account;

(c) What purported to be the missing documents and submissions were sent to the Authority;

(d) The Authority (par 8) determined that the documents were new information and should be considered.

(e) The determination that the documents were new information involved finding that the documents:

(i) were credible personal information which was not previously known and,

(ii) had it been known, may have affected the consideration of the applicant's claim, and

(iii) that there were exceptional circumstances such as to enable the information to be taken into account.

(f) The applicant claimed that his brother-in-law was a high ranking LTTE officer prior to being killed in battle.

(g) Despite the above, the Authority did not proceed to consider the new information.

1. On 14 July 2025, the first respondent filed a written submission (RS).

1. At the hearing in this Court on 17 July 2025, Stephen Hodges from Hodges Legal appeared for the applicant, and Tim Reilly of counsel appeared for the first respondent.
2. A Court Book was tendered (CB) which contained the IAA's decision and documents before the IAA.
3. Mr Reilly and Mr Hodges made oral submissions which supplemented their written submissions. The submissions are addressed below.

1. As recorded by the IAA at [3], on 19 September 2017 the applicant's representative provided to the IAA:

(a) a submission dated 19 September 2017 (CB 147-151);

(b) a statutory declaration of the applicant's representative dated 19 September 2017 and attached emails (CB 152-155); and

(c) a "package of documents" comprising a statutory declaration of the applicant dated 18 April 2017 (which the IAA defined at [3] as "the April Declaration") (CB 164-165), three identity documents (CB 160-163) and a photograph (CB 159).

1. The IAA at [4] considered whether the "package of documents" was new information within the meaning of s 473DC(1). The IAA found that the three identity documents were not new information because they "were included with the applicant's SHEV application". The IAA found that the remaining documents, being the April Declaration and photograph, were new information.
2. Section 473DD of the Act provided at the time of the Tribunal's decision:

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

1. In light of s 473DD, the IAA at [4]-[8] considered whether it could consider the new information for the purpose of making a substantive decision in respect of the review. The IAA at [8] was "satisfied that exceptional circumstances exist to justify considering the new information". It appears that the IAA then considered that it was required to consider the new information for the purpose of making a substantive decision in respect of the review.
2. The applicant's complaint to the Court in the New Ground is that the IAA "did not ... consider the new information": particular (g) of the New Ground. In the applicant's written submission, the contention is stated at AS [15] as follows:

The Authority failed to comply with its legal requirement. That is, having found that the new information was able to be considered under s 473DD did not do so. The Authority admitted the Statutory Declaration of the Applicant dated 18 April 2017, the statutory declaration of the representative and the photographs but did not mention them thereafter.

1. One part of the new information was the April Declaration. The IAA at [19], [21] and [22] expressly referred to the April Declaration and to information in the April Declaration. The assertion at AS [15] that the IAA "did not mention" the April Declaration is incorrect. At the hearing on 17 July 2025, Mr Hodges conceded that the IAA considered the April Declaration.
2. The other part of the new information was the photograph at CB 159 which shows three men standing in front of a tank. An email from the applicant's representative to the delegate dated 20 April 2017, which was part of the material provided by the representative to the IAA on 19 September 2017, stated that one man in the photograph was the husband of the applicant's sister S "who died after the Muhamalai war". The IAA at [16] referred to the applicant's claim that S's husband "was in the LTTE from 1990 and was a high rank", "was in charge of a tank division and was part of the Muhamalai fight in 2006" and "was returning to Kilinochchi when he was killed by a shell attack". The IAA at [25] did "not accept ... that [S's] husband was a high ranking officer in the LTTE in the tank division before being killed in a shell attack". During the hearing, I asked Mr Hodges to explain the importance or relevance of the photograph to the applicant's claims. Mr Hodges was unable to answer this question. I agree with the first respondent's submission at RS [13] that "there was no occasion for [the IAA] to specifically mention the photograph". That the IAA did not refer to the photograph does not mean the IAA did not consider it: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46]. I reject the applicant's claim that the IAA did not consider the photograph. A reason the IAA did not refer to the photograph in its reasons for decision was because the IAA did not consider the photograph was material to its decision: see Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 at [34].
3. It is suggested at AS [15] that the statutory declaration of the applicant's representative dated 19 September 2017 was also "new information" which the IAA erroneously failed to consider. However, first, the forensic purpose of this statutory declaration was, in light of s 473DD of the Act, to persuade the IAA to consider the April Declaration, the photograph and some identity documents in making a substantive decision in respect of the review. Second, the IAA at [4] did not consider that the statutory declaration of the applicant's representative was new information. Third, with reference to s 473DC(1), I do not consider that the statutory declaration of the applicant's representative was new information. Fourth, the statutory declaration of the applicant's representative was immaterial to proving the applicant's claims. For these reasons, there was no error by the IAA in not referring to the statutory declaration of the applicant's representative in making its factual findings at [10]-[32] or in assessing at [33]-[61] whether Australia owed protection obligations to the applicant.
4. For the above reasons, the New Ground does not identify a jurisdictional error in the IAA's decision.

1. At the end of the hearing, I invited submissions from the parties on costs. Mr Reilly did not have instructions as to the amount sought by the first respondent, and stated his instructing solicitor would email my Chambers the amount sought following the hearing. Mr Hodges did not oppose an order for costs below the scale amount of $8,371.30. Following the hearing, my Chambers received an email from the first respondent's solicitor, copied to Mr Hodges, seeking costs in the amount of $6,500. I consider this amount is reasonable. I will order that the applicant pay the first respondent's costs in the amount of $6,500.

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