EMJ17 v Minister for Immigration and Citizenship [2026] FedCFamC2G 8

1. The applicant seeks judicial review of a decision made by the Immigration Assessment Authority (IAA) (as it was). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (protection visa).
2. For the following reasons, the application before the Court must be dismissed.

1. The applicant is a Sri Lankan national who lodged a protection visa application on 31 August 2016. On 9 March 2017, the Delegate refused the application. The matter was then referred to the IAA for review of the Delegate's decision.
2. On 25 September 2017, the IAA affirmed the Delegate's decision. On 27 September 2018, the IAA's decision was quashed and remitted back to the IAA for redetermination.
3. On 4 December 2018, the IAA affirmed the Delegate's decision not to grant the applicant a protection visa.

1. The IAA observed that it had obtained a country information report containing new information. The IAA found that the requirements for consideration of this information under s 473DD of the Migration Act 1958 (Cth) (Act) were met (at [4]). Although the IAA found that the requirements of s 473DD of the Act were met in relation to certain new information submitted by the applicant, it found that they were not met in relation to other information (at [9] and [14]-[18]). The IAA declined to obtain certain new information pursuant to its power under s 473DC of the Act (at [13] and [20]). As the IAA's reasoning in this regard is the subject of challenge, it will be considered further below.
2. The IAA accepted that:

(a) the applicant was a Tamil and Hindu (at [23]);

(b) the applicant was displaced during the civil war and that he was subjected to regular cordon and security exercises (at [24]);

(c) as a Tamil living in the Eastern Province, which at times was a stronghold for the LTTE in some areas, the applicant's brother was viewed with suspicion and detained for several days in the 1990s (at [25]);

(d) during the period 1999/2000, the applicant transported goods to the LTTE (at [25]);

(e) the applicant was involved in assisting at a Pongu Thamil event (at [25]);

(f) the applicant went to another country before returning to Sri Lanka and establishing a business (at [26]);

(g) one of the other shop owners sought to take advantage of his connections with the authorities and bullied the applicant into making payments to him (at [27]);

(h) when high profile visitors came to the area, the authorities conducted investigations in the area, particularly of the Tamil businesses (at [28]);

(i) the applicant was detained when a mine was located in the vicinity (at [29]);

(j) the applicant's brother was detained after the civil war and paid money to facilitate his release (at [30]);

(k) the applicant was a member of the organising committee for his Hindu temple and that, in the process of transporting goods to the temple, he was stopped and assaulted by army soldiers (at [31]);

(l) the applicant was detained after attempting to depart Sri Lanka illegally previously and paid a bribe to be released (at [39]);

(m) the applicant subsequently departed Sri Lanka illegally (at [40]);

(n) the applicant was transferred to Nauru where he was interviewed as part of a refugee/asylum seeker assessment (at [41]);

(o) the applicant's details were released in the data breach in Australia (at [42]);

(p) as a Tamil the applicant may have a subjective fear of arrest, detention, disappearance and mistreatment at the hands of the Sri Lankan authorities (at [46]);

(q) there continued to be reports of arbitrary detention and harm perpetrated by the security forces in Sri Lanka, particularly of Tamils (at [46]);

(r) as a result of the data breach, the Sri Lankan authorities may be aware of the applicant's asylum claim (at [59]); and

(s) the applicant may find interaction with the authorities confronting (at [64]).

(a) the investigations conducted regarding Tamil businesses when high-profile visitors came to the area were indicative of an adverse interest in the applicant by the authorities (at [28]);

(b) the applicant's detention around the period that a mine was located resulted in ongoing adverse interest in the applicant (at [29]);

(c) there was ongoing interest in the applicant's brother after his release from detention following the civil war (at [30]);

(d) the applicant's brother was a political candidate in elections, that the applicant assisted him or was otherwise involved, or that the applicant was harassed by the authorities or political rival groups as claimed (at [35]-[37]);

(e) the Terrorist Investigation Division came to the applicant's home asking about his brother, or suspecting the applicant of having hidden explosives (at [37]);

(f) the applicant would seek to be involved in politics should he return to Sri Lanka (at [38]);

(g) the applicant was subject to any bail provisions or outstanding charges in relation to his previous illegal departure from Sri Lanka (at [39]);

(h) the country information, overall, supported a finding that the applicant would face harm on return to Sri Lanka on the basis of his Tamil ethnicity, or for being a Tamil male from the Eastern Province (at [49]);

(i) the applicant's involvement with the LTTE in transporting goods and assisting a Pongu event was of interest to the authorities while in Sri Lanka or would be should he return (at [52]);

(j) the applicant's links or his own activities would result in a real chance of harm should he return to Sri Lanka (at [53]);

(k) there was a real chance the applicant would be tortured or otherwise harmed (at [54]);

(l) the applicant would face harm on return to Sri Lanka for being a Hindu or for his involvement at the temple (at [56]);

(m) the applicant would be harmed by his neighbouring Sinhalese store owner, "Sinhalese thugs", or others (at [57]-[58]);

(n) the applicant was imputed with an LTTE profile in Sri Lanka or that he was of adverse interest to the authorities (at [58]);

(o) the applicant would face any real chance of harm as a returning failed Tamil asylum seeker (at [59]);

(p) the applicant has been, or would or might be, imputed with an adverse profile now or in the foreseeable future as a returning asylum seeker (at [59]);

(q) visits or contact after the applicant returned home would amount or lead to any harm (at [59]); or

(r) there was a real chance the applicant would face any harm as a returning failed Tamil asylum seeker (at [59]).

1. In relation to the applicant's illegal departure, the IAA accepted that the applicant may be detained and questioned at the airport, be required to appear in court, face a limited period of detention in unpleasant conditions, and may be fined. The IAA did not accept that this would result in serious or significant harm. Further, the IAA found that such treatment would be pursuant to the non-discriminatory application of a law of general application (at [60]-[67] and [72]-[73]).
2. Having regard to the above, the IAA concluded that the applicant was unable to meet the criteria for the grant of the protection visa (at [67]-[74]). Accordingly the IAA affirmed the Delegate's decision.

1. The applicant sought judicial review of the IAA's decision through an application filed on 17 December 2018. The matter remained in the central migration docket for some years before being allocated to my docket more recently and listed for hearing. The applicant ultimately relied upon an amended application filed on 22 August 2025, containing the following ground:
   1. The Immigration Assessment Authority (as it then was) erred in not obtaining all documents from the Secretary under Migration Act 1958 (Cth) s 473CB(1)(c) such that its decision dated 4 December 2018 in respect of the Applicant is affected by jurisdictional error consistent with the existing findings of Justice Thawley in EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462, [37]-[56].
2. The applicant observed that, in earlier proceedings before this Court, he had caused a subpoena to be issued. Category 4 of the documents described in the subpoena sought "Primary document/documents received or produced by the First Respondent upon which a decision to grant the applicant PAIS eligibility was based". The applicant observed that, on 21 March 2018, an application seeking further compliance with category 4 of the subpoena was dismissed. This was challenged on appeal.
3. As the reasoning of Thawley J at [49]-[55] of the appeal judgment in EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 (Appeal Judgment) was relied upon heavily by the applicant, it is appropriate to set it out in some detail:
   1. For the reasons which follow, the primary judge's discretion miscarried.
   2. The primary judge's reasons for refusing to order further compliance with paragraph 4 of the subpoena can be found in two judgments. First, there is his Honour's judgment in EMJ17 v Minister for Immigration and Anor (No 2) [2018] FCCA 724 which comprised the following three paragraphs:
      1. The applicant's representative has asked the Court to order that there be further compliance with paragraph 4 of the subpoena on the ground that there is a reference in the email dated 15 August 2016 to torture and trauma treatment 24 months ago. Mr Tambimuttu submitted that documents relating to the history of the applicant involving torture and trauma in the context of the Primary Application and Information Service ("PAIS") assistance scheme are relevant to the argument sought to be developed under ground 1. The documents already produced identify the applicant asserting a history of torture and trauma in relation to the PAIS assistance scheme.
      2. It is not apparent to the Court why further production in those circumstances should be ordered, as any argument to be advanced can be advanced on the material presently before the Court. Further, the material on its face would not materially alter the identification of the alleged history of torture and trauma that is identified on page 3 of the case plan document and the reference already made to torture and trauma treatment 24 months ago. In those circumstances, the Court is not satisfied that there is any further relevant document that is required to be produced in order for the applicant to be able to advance the applicant's arguments in respect of ground 1.
      3. Further, the Court has been informed by the first respondent that the steps that have been taken so far are not ones in respect of which there was a time limitation, but rather that the relevant officer has left the department and that the steps taken to date to identify the material have not identified any other material relating to the assessment. For that further reason, the Court refuses the application to require further compliance with paragraph 4 of the subpoena.

51 Second, there are paragraphs J[22] and J[23] of the principal judgment:

1. The first respondent informed the Court that the assessor was no longer in the first respondent's employment and that it is possible that there are other documents considering the torture and trauma treatment 24 months ago in the email dated 15 August 2016. This was the basis upon which Mr Tambimuttu argued there must be other documents and a further order should be made requiring the first respondent to produce all of the records falling within ground 4. The Court declined to make such an order and identified that the applicant had the material in exhibit C and it was admitted subject to relevance. The information that referred to a history of torture and trauma and having been provided insofar as the applicant's grounds sought to develop a relevant error in ground 1 by reason of the alleged breach of s 473CB of the Act by the Authority, it is difficult to see how any of the information as to the history of torture and trauma was relevant or material.

2. Mr Tambimuttu argued that there may be other records in relation to the torture and trauma treatment that may further advance the applicant's assertion of a breach of s 473CB of the Act and that may have been relevant to the assessment of the applicant's claims. The Court was not satisfied that any further documents, even if they did identify torture and trauma treatment, would further or advance the issue raised by ground 1. The Court was not satisfied that any such further documents were necessary to develop the argument contended by the applicant in relation to ground 1, nor that any such further documents are relevant in the circumstances of being probative of a relevant fact in issue given the information was produced the subject of exhibit C.

52 The appellant has established error in accordance with House v The King:

(1) First, the primary judge did not understand the relevance of the documents sought under paragraph 4 of the subpoena:

(a) at J[22] and J[23], the primary judge stated, in substance, that he could not see the relevance of the documents;

(b) the primary judge ultimately rejected as irrelevant the tender of the two documents which had been produced: J[27]. However, whilst the two documents produced may not have made out ground 1, they were clearly relevant to ground 1.

(2) Secondly, the primary judge did not understand that further documents might advance the case under ground 1; the primary judge did not appreciate that whether ground 1 could be made out depended on the quality and nature of the material it was contended that the Secretary failed to give to the Authority under s 473CB(1)(c). At J[23], the primary judge stated:

... The Court was not satisfied that any such further documents were necessary to develop the argument contended by the applicant in relation to ground 1, nor that any such further documents are relevant in the circumstances of being probative of a relevant fact in issue given the information was produced the subject of exhibit C.

The primary judge approached the matter at J[2] of [2018] FCCA 724 by saying that "any argument to be advanced can be advanced on the material presently before the Court", which demonstrates the same error. As noted above, his Honour in fact rejected the tender of the "material presently before the Court" (namely Exhibit C) on the basis that the material was irrelevant: J[27].

(3) Thirdly, the primary judge approached the matter on the basis that "the material on its face [which, in context, can only be a reference to documents which might have been produced had further compliance in fact been ordered] would not materially alter the identification of the alleged history of torture and trauma that is identified on page 3 of the case plan document and the reference already made to torture and trauma treatment 24 months ago" and therefore that he was "not satisfied there is any further relevant document that is required to be produced": J[2] of [2018] FCCA 724. This reasoning is illogical and circular. The primary judge could not have known the content of the documents not produced or whether that content would "materially alter the identification of the alleged history of torture and trauma that [was] identified" in the two documents produced. That illogical conclusion was then used, circularly, as the basis for the primary judge's lack of satisfaction that there were further relevant documents to produce.

1. It should be noted that the Minister acknowledged before the FCC that further documents might exist: J[22]. On appeal it was stated that it was not possible to ascertain whether further documents could be provided because the person who did the PAIS assessment was no longer in the employ of the Department. This appears to reflect the submission made to the FCC recorded at J[22] of the principal judgment, and J[3] of [2018] FCCA 724. However, one of the documents which was produced made it clear that more than one person was in some way connected with the PAIS assessment. The email from Mr Wales (who was said possibly to be the relevant person no longer in the employ of the Department) was sent to "PAIS". There are numerous searches which can be conducted in the absence of a person who was involved in a particular event; to name a few: date range searches, key word searches and inquiries of people to whom the absent person made communications. The Minister could not say, on the appeal, whether other people were involved in the assessment process, or whether "PAIS" was a single person or a team of people, or whether inquiries were made of "PAIS". The nature of searches which were undertaken was not identified. The primary judge recorded that "the relevant officer has left the department and ... the steps taken to date to identify the material have not identified any other material relating to the assessment": J[3] of [2018] FCCA 724. It does not appear from the material before this Court that any inquiry was made as to what steps had been taken.

2. There may have been discretionary reasons not to require further compliance with the subpoena, but the basis upon which the application for further compliance was refused was affected by error. If the errors had not occurred, further compliance may have been ordered. The consequence of not ordering further compliance was that the appellant was disabled from putting ground 1 of his application for judicial review otherwise than by reference to the two documents produced (the tender of which were rejected).

3. The Minister submitted that the documents sought were irrelevant because the appellant had not made a claim of "torture". There are two answers to that submission:

(1) First, whilst the appellant had not made a claim using the word "torture", he had made a claim of physical mistreatment, as set out above at paragraph [10].

(2) Secondly, if the material before the Secretary very obviously raised the fact that the appellant had been tortured, a question might arise whether an unreasonable failure on the part of the Secretary to give that material to the Authority gave rise to a breach of s 473CB(1)(c) which affected the Authority's review, notwithstanding that the appellant had not expressly made a claim of "torture" - cf: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1.

1. Error was therefore found in relation to the primary judge's exercise of discretion in refusing to order further compliance with the subpoena. If this had been the only error, then the matter would have been remitted to the Federal Circuit Court of Australia (FCCA) (as it was) for reconsideration. However, the IAA's decision was ultimately quashed on another basis. Namely, Thawley J found that the IAA had erroneously understood that the discretion in s 473DC(1) of the Act was confined by a requirement that there exist, at the time of considering whether to exercise the discretion to get new information, "exceptional circumstances" within the meaning of s 473DD(a) of the Act: [57]-[65] of the Appeal Judgment.
2. The applicant submitted that the error identified by Thawley J was not corrected before the decision presently under review was reached. This was said to be demonstrated by [20] of the IAA's decision, which stated:
   1. It was evident from the review material that the applicant had been assessed as eligible for assistance under the Primary Application and Information Service (PAIS), although the basis of the assessment was not apparent. An issue that arose before the Court was whether there was a failure by the Secretary to provide relevant information to the IAA under s.473CB concerning the basis on which the applicant had been granted PAIS, said to be potentially relevant to his case. While the ground was not made out, the Court found that the primary judge had erred in refusing to order further compliance with a subpoena to produce relevant documents. No further information has been provided to the IAA by the department, whether pursuant to s.473CB or otherwise, and it is unclear what, if any, further information might be available, or what its relevance might be. No submissions have been made to the IAA concerning this issue, either before the first IAA decision was made or in the submissions made since the judgment was handed down. The applicant has claimed to have been assaulted by the authorities in Sri Lanka and this claim has been accepted as has his claim to have grown up and witnessed violence during the civil war and been displaced because of the conflict. His initial representative advanced that the applicant is vulnerable and has a fear of authorities and the applicant described himself as having poor health and being confused, forgetful and stressed. I am satisfied that the applicant has advanced his vulnerabilities and has had the opportunity to put forward any supporting medical evidence should he have wished to do so, noting that he has had the benefit of representation at the various stages of the processing his protection visa application. Considered overall I do not consider the circumstances warrant getting new information in this regard.
3. In written submissions, the applicant submitted that this reasoning was "entirely at odds with the possible jurisdictional error raised by Justice Thawley, and which comprised the reasons for quashing [the IAA's earlier decision]". The applicant submitted that there was no explanation as to why the documents the Secretary was to provide the IAA were not provided and no explanation why the IAA did not insist upon obtaining them before reaching its most recent decision. The applicant submitted that the IAA made the same error as the FCCA had made in relation to the subpoena, by "speculating and/or making a preliminary assessment on their relevance without actually considering the content of the further documents or information... including where it was on express notice that they might exist".
4. The applicant submitted that, as a result of the IAA's error in failing to obtain the potentially relevant further documents - which may have disclosed a credible history of torture or trauma - the applicant was disabled from properly putting forward his claim for protection before the IAA. The IAA's error was therefore submitted to have denied the applicant the realistic possibility of a different decision.
5. Although in written submissions the applicant contended that the IAA's decision was "affected by jurisdictional error under MA ss 473CB(1)(c), 473CC", the applicant submitted that he did not wish to rely upon this paragraph of his submissions at hearing. At hearing, the applicant expressed that his case was not about s 473CB of the Act. Instead, the applicant confirmed that the error contended was effectively that the IAA did not do what Thawley J said it had to do.
6. The applicant relied upon SZGUW v Minister for Immigration and Citizenship [2009] FCA 321; (2009) 108 ALD 108 (SZGUW), in which Reeves J stated at [13]-[19]:
   1. The respective roles of the judiciary and administrative decision makers was discussed at length in the often quoted decision of Brennan J in Attorney-General (New South Wales) v Quin ('Quin') (1990) 170 CLR 1. The following observations of Brennan J in Quin are particularly relevant for present purposes (at 35-36):

The essential warrant for judicial intervention is the declaration and enforcing of the law affecting the extent and exercise of power: that is the characteristic duty of the judicature as the third branch of government.

...

The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

1. Applied to the Migration Act 1958 (Cth) ('the Act'), these observations of Brennan J reinforce the well established principle that, under the Act, the Tribunal, and it alone, is responsible for the conduct of merits reviews of the decisions of ministerial delegates. However, these observations also reinforce the equally well established principle that questions of law that arise for determination in the course of the Tribunal's merits reviews, specifically relating to whether the Tribunal has exceeded or neglected its jurisdiction, are the responsibility of the judiciary, and it alone: see Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [104] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

2. In Quin, Brennan J went on to emphasise the care the courts should take to avoid interfering with the legitimate exercise of administrative power. He said (at 37-38):

The courts - above all other institutions of government - have a duty to uphold and apply the law which recognizes the autonomy of the three branches of government within their respective spheres of competence and which recognizes the legal effectiveness of the due exercise of power by the Executive Government and other repositories of administrative power. The law of judicial review cannot conflict with recognition of the legal effectiveness of the due exercise of power by the other branches of government.

If judicial review were to trespass on the merits of the exercise of administrative power, it would put its own legitimacy at risk.

1. To underscore all this, various decisions have made it clear that even where a court decides, on judicial review, that the decision of an administrative tribunal should be quashed because it is wrong in law, the court does not have the power to substitute its own decision for that of the administrative tribunal, or order it to decide the matter one way or the other: see The King v the War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242 per Rich, Dixon and McTiernan JJ and at 245 per Starke J; R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177 at 189 per Kitto J; Murphyores Inc Pty Ltd v The Commonwealth [1976] HCA 20; (1976) 136 CLR 1 at 17 per Mason J; and Leisure and Entertainment Pty Ltd v Willis [1976] HCA 20; (1976) 136 CLR 1 at 220 per Spender J and, see also, Lewis C, Judicial Remedies in Public Law ('Lewis'), 4th Ed, Sweet and Maxwell at 6-016 and the English authorities cited.

2. Consistent with the principles outlined above, the court's role is limited to stating what the law is and to ordering the administrative tribunal to consider the matter afresh according to law as stated. However, the necessary concomitant of the court's care and restraint in its review of administrative decisions is that when a court does decide to set aside an administrative decision because it involves an error of law, it goes without saying, that the decision maker will take heed of what the court has said the law is, and apply it in its reconsideration of the matter. After all, this is what the expression "to consider the matter according to law" plainly means. This flows from everything Brennan J said in Quin and, indeed, the enforcement of the rule of law dictates nothing less: see Church of Scientology Inc v Woodward [1982] HCA 78; (1982) 154 CLR 25 at 70 per Brennan J.

[9] There is a fundamental difficulty where a court makes an order remitting a matter to a decision-maker or tribunal to be decided "according to law" and the court itself is not informed of the nature of the error conceded. The court is then making an order without being apprised of its basis and proposed operation. To do so in my opinion is a purported, but not an actual exercise of judicial power. Moreover, in a practical sense the decision-maker or tribunal lacks the benefit of any binding direction from the court as to precisely what it is that the decision-maker or tribunal is required to do.

...

[15] In the ordinary course after a contested hearing on a judicial review application such an order may be made and its content derived from the reasons for judgment that accompany it where an error or errors in law are identified. Absent such reasons, and without further explanation in the order itself, the decision-maker would lack any binding direction from the Court as to precisely what it was that the decision-maker was required to do. (emphasis added)

See also, Yulianti v Minister for Immigration and Multicultural Affairs [2001] FCA 142 at [12] per Stone J and Allan v Repatriation Commission [2003] AATA 994 at [13] per Downes P.

1. True it is, that in a reconsideration of a matter under the Act, the Tribunal considers the matter de novo, which means that the Tribunal is therefore entitled to consider the matter afresh on the evidence before it and it is not bound by the first Tribunal's decision: see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 per Bowen CJ and Deane J and, see also, Lewis at 6-017 and the English authorities cited. However, reconsidering the matter afresh without being bound by the first Tribunal's decision on the facts, does not mean ignoring the rulings of law made by the Court on the first Tribunal's decision.

1. However, there is nothing in the above reasoning that requires a decision maker such as the IAA to set out in its reasons for decision an earlier, judicially determined decision relevant to the matter.
2. It is apparent that the IAA was aware of Thawley J's judgment, which was summarised (albeit in brief terms) at [20] of its decision. Unlike in SZGUW, the IAA in this case did not fall into the species of error prompting remittal of the earlier decision. The IAA's reasons do not disclose any erroneous belief on the part of the IAA that "exceptional circumstances" were required in order for the discretion under s 473DC of the Act to be enlivened.
3. I also do not accept that the IAA fell into a similar manner of error to that identified by Thawley J in relation to the subpoena.
4. It is important to understand that the IAA was exercising a different type of discretion to that exercised by the FCCA in considering whether to require further production under a subpoena. Different principles governed the exercise of the latter discretion and the discretion exercised by the IAA in declining to exercise its power to obtain further information under s 473DC of the Act.
5. The discretion regarding the subpoena occurred within the context of a ground of judicial review that was then sought to be advanced by the applicant regarding s 473CB of the Act. Within the context of that ground, and contrary to the reasoning of the primary judge, it was found that documents sought were "clearly relevant". Justice Thawley found that the primary judge "did not appreciate that whether ground 1 could be made out depended on the quality and nature of the material it was contended that the Secretary failed to give to the Authority under s 473CB(1)(c)". Further, it was found that the primary judge's conclusion that the documents sought would not materially alter certain evidence was not open, in circumstances where the content of the documents was unknown. The problematic reasoning in this regard was found to have been used as the basis for the primary judge's lack of satisfaction that there were further relevant documents to produce.
6. In contrast, the IAA's exercise of discretion occurred within the particular statutory context of a review conducted under Part 7AA of the Act. Justice Thawley did not purport to determine how the IAA ought to exercise its discretion under s 473DC of the Act within that statutory context. Nor did Thawley J determine that the documents in question were required to be provided to the IAA by the Secretary under s 473CB of the Act.
7. It is apparent from [20] of the IAA's decision that the IAA did not proceed on the basis that any documents available were not potentially relevant. Rather, the IAA considered that it was "unclear what, if any, further information might be available, or what its relevance might be". This reasoning was intelligible. In contrast to issues identified in the Appeal Judgment, the IAA's reasoning acknowledged that the IAA did not know the relevance of the documents without (a) obtaining them; or (b) having received further information in this regard from the Department or from the applicant.
8. In considering whether to exercise its discretion under s 473DC of the Act to obtain further information, the IAA had regard to the opportunities that had been given to the applicant to provide related evidence to the IAA. The IAA observed that the applicant, who had the benefit of representation, had not addressed the issue in submissions provided after the Appeal Judgment had been handed down. In these circumstances, the IAA declined to obtain further information.
9. The IAA's reasoning thereby provided an intelligible justification for the exercise of discretion, which was not inconsistent with the Appeal Judgment. Essentially, the discretion was not exercised in circumstances where the applicant had not made submissions identifying the utility of exercising the discretion despite opportunity to do so. This was in circumstances where the applicant had also had an opportunity to put forward related evidence, had he chosen to do so.
10. Even if some error had been demonstrated in relation to the exercise of discretion regarding the PAIS documents, I accept the Minister's submission that materiality has not been demonstrated. The two documents that had been produced by the Minister in response to category 4 of the subpoena were summarised as follows at [28]-[29] of the Appeal Judgment:
    1. The Minister then produced two documents in answer to paragraph 4 of the subpoena. The first was an email dated 15 August 2016 from the Manager of IMA Protection Support, TPV Assessment Branch, Refugee and Humanitarian Visa Management Division, Visa & Citizenship Services Group in the Department of Immigration and Border Protection. This was addressed to "PAIS". It stated that the appellant, referred to as the "client", had been "reassessed ... based on additional information received". The email referred to "T & T Treatment 24+ Months Ago". It contained the word: "Eligible".
    2. The second document was a "Case Plan". Page 3 of the Case Plan contained the following question and answer:

Detail any mental health issues identified through information provided on referral, medical reports, discussion with the recipient and observations. Include any changes or concerns that require escalation and evidence of new condition if applicable.

Mr [EMJ17] has disclosed a history of Torture and Trauma and in the past accessed specialist services while in detention. At this stage client has not consented to mental health services in the community. CM to monitor and assess mental health needs on an ongoing basis.

1. It is not apparent how these documents could have potentially altered the conclusions reached by the IAA. This has not been demonstrated by the applicant. A "history of Torture and Trauma" could be said to have been similarly advanced by the applicant at other stages of the protection seeking process. I do not see how omission of further reference to this, in general terms, could realistically be said to have deprived the applicant of the possibility of a different outcome.
2. The Minister has produced evidence indicating that if further searches had been undertaken, no further documents of relevance would have been produced. I accept the Minister's submission that this may be inferred from the lack of such documents identified in searches subsequently undertaken of the Department's records: affidavit of Heather Field Stewart dated 15 October 2025 at [12]-[15].
3. For the above reasons, I accept the Minister's submission that jurisdictional error has not been demonstrated in relation to the PAIS documents.
4. The IAA further declined to obtain new information, pursuant to its discretion under s 473DC of the Act, at [13] of its decision:
   1. At his SHEV interview the applicant's representative stated the applicant has a copy of the application he made to the Nauru authorities but no information on the outcome, if any. The March 2017 submission further referred to the Refugee Status Determination process in Nauru and contends that "any information regarding the assessment ... may be relevant when assessing the applicant's claims for protection in Australia" and advised that the applicant has provided his consent for such information to be obtained from the Nauru authorities. It was advanced that Australia had a role "within the broader scope of the regional processing process" and on the basis of that arrangement "it is likely that DIBP would have access to information relating to the outcome" of the Nauru application. I have considered the utility of this information and note that the IAA is required to assess whether the applicant meets the criterion for a protection visa under s.36(2)(a) of the Act and the definition of a refugee under s.5H(1) of the Act. I consider such information would be of limited relevance to the IAA assessment as it would relate to the provisions of the Refugee Status Determination as applied by the authorities in Nauru. It is important to note that the purpose of IAA review is to assess protection obligations in the context of Australian law and I am not satisfied that any assessment or decision which may have been made within the Nauru Refugee Status Determination process and the jurisdiction of Nauru would be of sufficient relevance to this review and I am not satisfied that the circumstances warrant the IAA getting new information in this regard. In any event it is unclear if information of an outcome of the Nauru process exists or could be obtained, noting the applicant's statement at his SHEV interview that he agreed to forgo the Nauru process as part of an agreement to be transferred to Australia.
5. The applicant's written submissions did not contend error in this paragraph. In oral submissions, the applicant's representative stated in relation to the Nauru documents that he "could make a point about them, but it wasn't the focus of the application". However, he submitted: "Whether it's the subpoena or the Nauru, the IAA didn't get them, and the reasoning of Thawley J was effectively, 'How could you decide that you don't need them if they're not before you?'"
6. I accept the Minister's submission that the IAA's reasoning at [13] appears to have been lawfully available to the IAA. Justice Thawley did not find in the Appeal Judgment that no assessment of relevance could occur, in any context, without first obtaining the documents in question. As considered above, Thawley J's reasoning occurred in a particular context i.e. in which documents sought under subpoena were found to have relevance to a ground of judicial review that had not been appreciated by the primary judge, and where the primary judge had reasoned that material was not relevant in circumstances where that assessment was not open without knowing the material in question.
7. In the different context at issue in this proceeding, it has not been demonstrated that it was relevantly closed to the IAA to have not been satisfied that an assessment by another body, under potentially different criteria, was of sufficient relevance to its task on review to warrant additional information being sought pursuant to s 473DC of the Act. This was in circumstances where it was unclear whether such information even existed and the applicant's representative had confirmed that the applicant had a copy of his application. The IAA did not find that the assessment was not relevant. Rather, the IAA considered that particular material - relating to the outcome of another body's assessment - appeared to be of "limited relevance" within the context of the particular task faced by the IAA, and that it was "not satisfied" that such material was of "sufficient relevance" to warrant an alternative exercise of discretion under s 473DC of the Act. Such reasoning was not inconsistent with the reasoning of Thawley J.
8. Having regard to the above, I am not persuaded that jurisdictional error has been demonstrated by the applicant.

1. An unusual situation confronted the Court at hearing. The Minister had produced affidavits regarding other documents in the Department's possession that had been located in response to searches undertaken. The Minister made submissions regarding the nature of some of this material which, it was suggested, might give rise to an argument that s 473CB of the Act had not been complied with by the Secretary in providing material to the IAA. The Minister submitted that no objection would be taken if the applicant wished to "take up this issue and further amend his application and address it in written submissions". However, in such event, the Minister sought an opportunity to respond in writing to whatever specific arguments were made.
2. No amended application nor submissions in this regard were filed by the applicant in the intervening period between the Minister's submissions and the hearing. At the hearing, this was discussed with the applicant's representative. I observed that, at least on my initial impression, the potential ground raised by the Minister appeared to be the stronger ground. A brief adjournment was granted in order to allow instructions to be sought. After this, it was confirmed that the applicant did not wish to rely upon any contended breach of s 473CB of the Act. As neither party contended that the additional material that had been put forward in this regard was relevant to the issues required to be determined in this proceeding, a consent position was reached by the parties regarding the non-admission of such evidence.
3. In the above circumstances, I did not consider it appropriate to consider further whether the IAA's decision was relevantly affected by any breach of s 473CB of the Act. Such consideration would have required the Minister to have been given further opportunity to be heard, potentially increasing the costs of both parties in the matter. It would involve consideration of material not ultimately relied upon as evidence by either party. In circumstances where the applicant was represented by both a Solicitor and Counsel, I did not consider this to be an appropriate course.

1. For the above reasons, the application before the Court must be dismissed.
2. I will hear from the parties in relation to costs.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.