ETJ18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1691

1. The resolution of this case requires consideration of the discretionary power of the Immigration Assessment Authority (the IAA) to obtain further information in the course of that body's limited review of a protection visa decision. The power to 'get' further information is found in s 473DC(1) of the Migration Act 1958 (Cth). Importantly, s 473DC(2) expressly provides the IAA is not under a duty to get further information in any circumstances. But the discretionary power to get further information must still be exercised reasonably, as the Full Federal Court explained in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [82] per Robertson, Murphy and Kerr JJ.
2. In this case, the applicant, Mr ETJ18, argued it was legally unreasonable for the IAA not to seek or get further information about at least two matters that were relevant to the outcome of his protection visa application. The applicant says the decision is affected by jurisdictional error as a result. I disagree, for reasons I will explain below.

1. Mr ETJ18 is a citizen of Bangladesh. He arrived in Australia by boat on or about 30 January 2013. An officer from the minister's department interviewed Mr ETJ18 on 16 February 2013. Information from that interview is recorded in a form reproduced in exhibit 1 (the court book) at pp 7ff. The minister subsequently invited Mr ETJ18 to apply for a temporary protection visa. Mr ETJ18's application for a Safe Haven Enterprise (subclass 790) visa dated 23 March 2016 is reproduced in the court book at pp 32ff. The application form was accompanied by submissions and other material prepared with the assistance of a migration agent. On 19 July 2017, a delegate of the minister interviewed Mr ETJ18. A transcript of that interview is annexed to the affidavit of Lisa Mazzarol-Collins affirmed on 17 July 2025 (exhibit 3).
2. The applicant's claims for protection were initially recorded in a statutory declaration (reproduced in the court book at pp 69ff) accompanying his application for a visa. His application centred on a claim that he and other family members had been actively involved in supporting the Bangladesh Nationalist Party (the BNP). He claimed he experienced harassment and intimidation at the hands of supporters of the rival Awami League. That harassment and intimidation came to a head in 2006 when a businessman from a neighbouring area was abducted and murdered. Mr ETJ18 says Awami League activists were behind the abduction and murder but they sought to frame him and other BNP supporters for the crimes. He says the police commenced an investigation and he feared for his safety. He left the country bound for Malaysia in 2009. He lived and worked there for a time before coming to Australia in 2013.
3. The delegate was subsequently provided with additional documents that included a 'first information report' and complaint provided to the Bangladeshi police (translated versions reproduced at pp 206ff of the court book) which suggested the applicant was indeed being investigated. An awkwardly-worded letter from a lawyer in Bangladesh (reproduced at p 204 of the court book) dated 7 March 2016 said the applicant had been convicted of at least some of the charges that had been preferred against him. The lawyer said Mr ETJ18 faced capital punishment if he returned to Bangladesh.
4. A delegate of the minister subsequently refused the application for a protection visa. The delegate's decision dated 24 October 2017 is reproduced in the court book at pp 323ff. That decision was referred to the IAA for review.

1. Part 7AA of the Act established a 'fast track' review process that was intended to provide a limited form of review of certain protection visa decisions made by delegates of the minister. The IAA did not hold hearings as such. It generally made its decisions 'on the papers' (i.e., on the basis of material that was provided to it by the minister under s 473CB of the Act). But the IAA did have the capacity to consider new information, and it could invite applicants to provide further information or comment in some circumstances. The discretionary power to 'get' new information was set out in s 473DC(1) of the Act. The discretion was enlivened when (a) the documents or information in question were not before the minister when the decision was made, and (b) the IAA considered the missing material may be relevant to its task. Where the IAA elected to exercise the power to get further information, it could invite the person who had the information to provide it in writing or at an interview: s 473DC(3). Section 473DC(2) clarified that the IAA did not have a duty to get, request or accept new information. Section 473DD placed limits on the ability to take this information into account. This provision required the decision-maker to be satisfied there were exceptional circumstances that justified considering the new material. There was also a requirement that the information be genuinely new in the sense described in s 473DD(b).
2. The IAA was provided with the information required under s 473CB of the Act for the purposes of its review in this case. It also received submissions from Mr ETJ18. In a submission dated 20 November 2017, Mr ETJ18 invited the IAA to make any enquiries it saw fit to verify the information he had provided. He also asked for an interview with the IAA because he claimed the delegate did not properly assess his claims and may have overlooked certain matters: court book at p 375. Those submissions demonstrate a misunderstanding of the scope of the IAA's review.
3. On 13 August 2018, the IAA decided the delegate's decision should be affirmed. The IAA was not persuaded the applicant met the criteria for a protection visa after considering various aspects of his claims. A copy of the decision is reproduced at pp 404ff of the court book. At [5] of its reasons, the IAA explained:
   • It saw no need to seek further information that verified the applicant's claims since it was the applicant's responsibility to provide verification, and he had been given ample opportunity to do so; and
   • It would not conduct an interview or seek further information from the applicant in relation to his claims because he had already had ample opportunity to present his arguments to the delegate and had in any event provided further submissions to the IAA. (I note the IAA observed at [3] of its reasons that it had regard to the submissions insofar as they made arguments which referred to material already before the delegate.)

THE FURTHER AMENDED APPLICATION FOR JUDICIAL REVIEW

1. The applicant sought judicial review of the IAA's decision. His further amended application for judicial review was filed on 17 July 2025. It includes a single ground of review although that ground is accompanied by extensive particulars. The single ground contends:

The Authority erred by failing to consider the exercise of its power under s 473DC of the Act despite the fact that it knew, or ought to have known, that it did not have all of the information that was relevant to its assessment of the Applicant's credibility and that the information could have been obtained from the Applicant and from other sources available to the Authority.

1. Sub-paragraphs (a)-(f) of the particulars refer to the IAA's finding that the applicant had not been charged with or convicted of murder. The applicant says those findings were made having regard to outdated country information. Sub-paragraph (g) refers to the IAA's reliance on the apparently unsatisfactory answers given during the interview conducted by the delegate. I will deal with each of those claims separately.

The IAA's findings with respect to the criminal proceedings

1. At [26] of its reasons, the IAA referred to the delegate's decision in which the delegate doubted the applicant's claim that he had been subject to criminal proceedings because "credible country information" available to the delegate suggested arrest warrants in Bangladesh were generally not available to the public. The delegate's finding to this effect is recorded at p 328 of the court book. (I note the IAA echoed these remarks at [50] of its reasons.)
2. The delegate's finding was based on a 2010 country information report generated by the Home Office in the United Kingdom (2010 Home Office report).[1] The delegate noted the 2010 Home Office report relied on an Australian Department of Immigration and Multicultural Affairs' Country Information Service Report that had been published in 1998 (1998 Australian report). The IAA found (at [26] of its reasons) the applicant had failed to explain why the charging documents should be accepted given the reports discussed by the delegate.
3. In written and oral submissions, Mr Jones, who appeared for Mr ETJ18, argued there were other, more recent country information reports available at the time of the IAA decision that were relevant. He says they should have been taken into account. In particular, Mr Jones referred to:
   • 'Report of a Home Office Fact-Finding Mission - Bangladesh' published by the UK Home Office in September 2017 (2017 Home Office report) (annexed to exhibit 2 in these proceedings) which did not repeat the claim about warrants made in the 1998 Australian report. The 2017 Home Office report said such documents were sometimes posted in a public place or published in a national newspaper. The report also appeared to suggest the accused or a lawyer could obtain a copy of the warrant from the court; and
   • A Country Information Report in relation to Bangladesh published by the Australian Department of Foreign Affairs and Trade on 2 February 2018 (2018 DFAT report) (annexed to exhibit 4 in these proceedings). That report did not repeat the claim made in the 1998 Australian report suggesting warrants were not publicly available. Mr Jones noted the IAA was aware of this report because it cited it for other purposes in the decision - but the IAA did not mention the report when it referred to the finding about the charges.
4. Sub-paragraph (f) in the particulars then contends:

Had the Authority been reasonably diligent in 2018 in assessing the evidence in the case it would have checked the currency of the 2010 Report, especially considering that it was based on a claim made 20 years previously, and would have discovered the 2017 [Home Office] Report. This could have affected the Authority's assessment of the credibility of the Applicant's claim to have had a false case of murder filed against him and to face a possible death sentence on return to Bangladesh.

1. The applicant's attack on the IAA's decision is that the decision involved an unreasonable failure to exercise the power in s 473DC to seek additional information.
2. The minister's counsel, Mr Sud, acknowledged CRY16 says the power in s 473DC(1) must be exercised reasonably. He pointed out reasonableness must be assessed in the circumstances of each case: CRY16 at [66] citing SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 at [24] per Gummow, Hayne and Crennan JJ. He said the correct approach to this task was explained by Gageler J in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332. In Li, his Honour explained (at [103]) a decision-maker acts unreasonably if they fail to consider exercising a power (in that case, to adjourn) "in circumstances where no reasonable tribunal could fail to do so." His Honour added the decision-maker would act unreasonably if they did consider exercising the power but decided against doing so "in circumstances where no reasonable tribunal could fail" to exercise that power. Mr Sud says the question before the Court is therefore "whether the IAA failed to consider the exercise of its power under s 473DC(1), and if so, whether that was in circumstances where no reasonable decision maker would do so." Mr Jones did not disagree with the correctness of this approach, although I have one concern that I shall explain below.
3. I have already noted the IAA did expressly consider whether it should seek out additional information that verified some of the applicant's claims. The IAA also expressly considered whether it should interview the applicant. In each case, the IAA decided against exercising the discretion. I accept the IAA's reasons do not expressly say it considered looking beyond the 2010 Home Office Report which included the assertion about arrest warrants not being publicised in Bangladesh.
4. Mr Sud argued I cannot safely assume the IAA failed to turn its mind to this issue just because there is no record of its thinking in the statement of reasons. He pointed out the IAA was not obliged to give reasons for not exercising a discretion in favour of the applicant (particularly in circumstances where the applicant never asked the IAA to exercise the power): see CCR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 9 at [36] per Jackson J.
5. While a decision-maker is not obliged to give reasons for an election such as the one in question here, they are still obliged to act reasonably. In the absence of a statement of reasons which provides insight into the decision-maker's thinking, the reasonableness of its actions will be evaluated in all the circumstances. Having said that, a Court on review should not rush to infer the decision-maker failed to consider exercising a discretion or that she misunderstood what was required: see BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [40] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ.
6. Mr Sud tentatively argued the IAA would ordinarily expect an express or implied request from an applicant before the discretion was enlivened - or, to put the issue slightly differently, a request would be expected before the decision-maker could be criticised for failing to consider exercising the power. I agree one would normally expect a request, but, as Jackson J explained in CCR18 at [41]:

...s 473DC does not make the discretion to get new information conditional on a request from the referred applicant. Section 473DC(1)(b) conditions the existence of the discretion on whether the Authority considers that the information may be relevant. The Authority can reach that view independently of any request by the applicant. Section 473DC(2) provides that the Authority does not have a duty to get new information whether it is requested to do so by a referred applicant or by any other person or in any other circumstances. That suggests that the discretion can arise irrespective of whether a request has been made or not. More broadly, any view that a lack of any request by an applicant means the discretion does not arise would be inconsistent with the administrative, as opposed to adversarial, nature of the Authority's decision making process, and with the limited participation in that process which Part 7AA affords to an applicant.

1. That brings me to the minor disagreement with the test proposed by Mr Sud that I flagged above. A sustained focus on whether the IAA actively considered exercising the power may miss the point. It seems to me the focus should instead be on the test proposed by Gageler J in Li at [103] that I quoted above - namely:
   • a decision-maker acts unreasonably if they fail to consider exercising a power "in circumstances where no reasonable tribunal could fail to do so"; and
   • a decision-maker acts unreasonably if they did consider the power but decided against exercising it "in circumstances where no reasonable tribunal could fail" to exercise that power.
2. While his Honour distinguishes between an unreasonable failure to consider exercising a power and an unreasonable but deliberate decision to exercise (or not exercise) a power, the same measure is used for evaluation purposes: is it the case that no reasonable decision-maker would do whatever the decision-maker did (or did not) do?
3. Mr Sud suggested it was open to a reasonable decision-maker not to consider exercising the power in circumstances where:
   • the 2010 Home Office report was not of such antiquity at the time of the IAA's decision that it was obviously unsafe to rely on it;
   • more recent reports were in any event further removed in time from the events in question in this case which supposedly occurred in or around 2006;
   • the fact an apparently authoritative report issued by the Home Office in 2010 quoted the 1998 Australian report added weight to the observation about arrest warrants in question and suggested that observation remained current in 2010;
   • the 2018 DFAT report did not repeat the observation made in the 1998 Australian report, but nor did the 2018 report expressly contradict or exclude the earlier observation; and
   • the applicant's representative provided extensive submissions on the applicant's behalf but at no point did they draw the IAA's attention to the existence of other reports - in particular, the 2017 Home Office report - which countered the observation first appearing in the 1998 Australian report.
4. Mr Jones said a diligent decision-maker would and should have uncovered the 2017 Home Office report. But that is not the test. The question is whether no reasonable decision-maker would have acted as the IAA did in this case when it declined to get information (or failed to even consider doing so) given the circumstances. I am not satisfied one can go that far in the circumstances identified above, particularly when one has regard to the context established by Part 7AA of the Act. The outline in s 473BA explained the independent assessment regime was established to provide "a mechanism of limited review that is efficient, quick, free of bias" and consistent with the requirements of Division 3. Division 3 provided reviews were usually completed 'on the papers': s 473DB. The regime contemplates the exercise of the power to 'get' new information as an exception to the general rule, and there are limitations on the use of that new material: s 473DD.

The IAA's decision not to 'get' further information about matters arising out of the interview with the delegate

1. The second claim made in the particulars arises out of the IAA's reliance on the record of interview between the applicant and the delegate to make adverse credit findings. The applicant contended (in sub-paragraph (g) of the particulars to the single ground of review) the IAA unreasonably failed to consider seeking further information under s 473DC(1) given there were obvious shortcomings in the record of that interview.
2. Mr Sud points out the IAA did consider whether to 'get' additional information: see [5] of the reasons. The IAA concluded the applicant had already been afforded an appropriate opportunity to provide input and the IAA was not satisfied further useful information (let alone 'exceptional' information within the meaning of s 473DD) would be forthcoming. The question, then, is whether no reasonable decision-maker would have taken that view.
3. I was provided with a transcript of the interview with the delegate. The transcript was annexed to the affidavit of Ms Mazzarol-Collins, a transcriptionist. The IAA referred to the exchanges in that interview at several points in its reasons when it made findings. In written submissions, Mr Jones was critical of the IAA for taking this approach, observing that the interview was perfunctory and unfocused. He argued the interview did not properly explore the issues which were thought significant by the IAA. He said it was inappropriate for the IAA to criticise the applicant for the quality and consistency of his answers, and the IAA should not have relied on those answers to make adverse credit findings. Mr Jones referred to well-known authorities that cautioned decision-makers against making uncritical assumptions about the significance of inconsistencies in an account: see BEL16 v Minister for Home Affairs [2019] FCA 1678; (2019) 167 ALD 295 at [16] per Beach J; see also ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 at [45] per Griffiths, Mortimer and Steward JJ.
4. Mr Jones referred to specific examples of findings that were said not to be soundly based, and which should have prompted the IAA to seek more information under s 473DC. The first related to the applicant's claim in his statutory declaration that he had obtained a false passport to facilitate his departure from Bangladesh without attracting the attention of authorities - a subterfuge that might be thought necessary because he was being improperly investigated. At [27] of its reasons, the IAA referred at length to the applicant's answers to questions posed by the delegate about how he came to apply for and acquire a passport. The IAA noted the applicant had said he first applied for a passport in 2001 before the troubles arose, which would be inconsistent with his earlier claim that he needed a passport with a false birthdate so he could avoid authorities upon his departure from Bangladesh in 2009. The IAA noted the applicant appeared to attempt to change his evidence and then said he could not remember the details.
5. The exchanges in relation to the passport begin at p 5 of the transcript. I accept there may be some confusion evident in the exchanges over when exactly the applicant applied for the passport in question. Mr Jones said it is reasonably clear the applicant is confused by the questions. Mr Jones said that obvious confusion should have prompted the IAA to obtain further information about whether there was one passport or two before making any findings. While I accept there may have been some confusion, it is not clear the delegate and the applicant were at cross-purposes.
6. The second example of a problem relates to the Tribunal's finding that the applicant "seemed confused" about whether the murder victim had been abducted before he was killed: at [31]. (The applicant's statutory declaration submitted in March 2016 had specifically mentioned the murder victim being abducted: at [5].) Mr Jones said a perusal of the relevant exchange in the transcript does not suggest there was any confusion on this issue. He said the delegate used the word 'abducted' and the applicant did not dispute that characterisation. But the applicant did push back: at p 12 of the transcript, the delegate asks the applicant to comment on the claim "about a rich person who was abducted by criminal elements in Awami League." The applicant replies: "It's not like that, it's different." He thereafter failed to clarify whether the man had been abducted.
7. The third example of a problem that the applicant argued should have prompted a request for further information lay in the evidence about police visits. The IAA said at [35] it found the evidence supplied in the interview to be "largely unconvincing" given (for example) the applicant had seemed unsure about the regularity of police visits to the family home as recently as 2017. The relevant exchange is found at pp 18-19 of the transcript. When pressed about the frequency of police visits more recently, the applicant said he was unsure - perhaps because he was not in Bangladesh, to be fair - but added (at p 19) he had not asked his father about the recent visits as: "I thought it not that important because I am living here. When they are coming is not that important to me."
8. The last example of supposedly shaky evidence that should have prompted a request for more information arose out of the applicant's claims of involvement in BNP activities in Australia. At [41]-[42] of its reasons for decision, the IAA comments unfavourably on the apparent vagueness of the applicant's evidence before the delegate in answer to questions about his activities. The IAA said (at [42]) it thought it odd that the applicant was not more forthcoming about these activities. Mr Jones said that criticism was unfair given an analysis of the relevant portion of the transcript at pp 19-20 reveals the delegate asking a series of questions before promptly calling an adjournment. Mr Jones suggested the applicant was not afforded an opportunity to provide more information. Mr Jones has a point: the way the interview was managed was not necessarily conducive to expansive responses.
9. Mr Sud emphasised in oral submissions that the applicant was not contending he had been denied procedural fairness, nor was the applicant arguing the decision was attended by illogicality (although the submissions were pregnant with that possibility). The applicant's focus was instead on the exercise of the discretion in s 473DC. When one has regard to the question posed by Gageler J in Li, it is impossible to say that no reasonable decision-maker would have elected to proceed without summoning further information after reviewing the applicant's evidence provided to the delegate. Even if one accepts some aspects of that evidence are not as clear-cut as the IAA appeared to assume, it would be open to a reasonable decision-maker to decline to exercise the discretion in s 473DC given what I have already observed about the statutory context. Whether each and every reasonable decision-maker would have made the same factual findings on the same evidence is beside the point.

1. The single ground in the further amended application for judicial review is not made out. The application must therefore be dismissed. I will hear from the parties with respect to the minister's application for costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.

[1] United Kingdom Home Office, Country of Origin Information Report, Bangladesh, (Report, 20 August 2010).