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FHP17 v Minister for Immigration - Protection Visa Appeal Dismissed

Australia Federal Court Latest Judgments

Filed April 2nd, 2026

Detected April 2nd, 2026

Summary

The Federal Court of Australia dismissed an appeal (FHP17 v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 377) challenging the Immigration Assessment Authority's refusal of a protection visa. The applicants alleged the Authority erred by departing from the delegate's finding that they were brothers and by not conducting its own interviews. The Court found no legal unreasonableness and that any error was not material to the decision.

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What changed

The Federal Court of Australia, presided over by Horan J, dismissed the appeal of FHP17 and co-applicant seeking judicial review of the Immigration Assessment Authority's decision to affirm refusal of a protection visa under the Migration Act 1958 (Cth). The applicants challenged the Authority's departure from the delegate's finding that they were brothers, arguing the Authority should have interviewed them or obtained the photographs shown to the delegate. The Court examined section 473DD of the Migration Act and found that legal unreasonableness was not established and any error was not material to the Authority's decision.\n\nFor practitioners handling protection visa matters, this decision reaffirms that the Immigration Assessment Authority has discretion in how it evaluates new information and is not legally required to conduct its own interviews when the delegate has already done so. The appeal was dismissed with costs, and VID 207 of 2024 has concluded at the Federal Court level.

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Original Word Document (113.6 KB) Federal Court of Australia

FHP17 v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 377

| Appeal from: | FHP17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 119 |
| | |
| File number(s): | VID 207 of 2024 |
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| Judgment of: | HORAN J |
| | |
| Date of judgment: | 2 April 2026 |
| | |
| Catchwords: | MIGRATION – appeal from decision of the Federal Circuit and Family Court of Australia (Division 2) dismissing application for judicial review – decision by Immigration Assessment Authority to affirm refusal to grant protection visa – where Authority departed from delegate’s finding that appellant and co-applicant were brothers – where delegate had interviewed applicants and was shown photographs of them together in Iran –whether legally unreasonable not to interview applicants or obtain photographs shown to delegate –where Authority found that new information did not satisfy s 473DD of Migration Act 1958 (Cth) – whether error in application of s 473DD was material to Authority’s decision – legal unreasonableness not established – error not material to decision – appeal dismissed. |
| | |
| Legislation: | Migration Act 1958 (Cth) ss 5, 35A(3A), 36(2), 473CB, 473CC, 473DB, 473DC, 473DD, 474

Migration Regulations 1994 (Cth) regs 1.05A, 1.12 |
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| Cases cited: | AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FCA 1223

AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407

ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439

ABT17 v Minister for Immigration and Border Protection [2019] FCA 613

ACN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 724

ALR17 v Minister for Home Affairs [2019] FCAFC 182

AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494

AWV18 v Minister for Home Affairs (No 3) [2020] FCA 365

AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90

BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 565

BYT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 157

Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66

CSR16 v Minister for Immigration and Border Protection [2018] FCA 474

CVP17 v Minister for Immigration and Border Protection [2021] FCA 1502

DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551

DPI17 v Minister for Home Affairs (2019) 269 FCR 134

DPT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 15

DYA16 v Minister for Immigration and Citizenship [2025] FCA 864

EAC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1657

FHP17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 119

FND17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1369

Fox v Percy (2003) 214 CLR 118

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123

Lee v Lee (2019) 266 CLR 129

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321

Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 (2021) 285 FCR 381

MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506

Plaintiff S157 / 2002 v Commonwealth (2003) 211 CLR 476

Prouten v Chapman [2021] NSWCA 207

Appellant | |
| AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent | |

The appeal is dismissed.
The appellant pay the costs of the respondents, to be agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HORAN J:

1 The appellant brings this appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) (FCFCoA) to dismiss his application for judicial review of a decision of the Immigration Assessment Authority: FHP17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 119 (J).

2 The appellant relies on two grounds of appeal.

3 First, he submits that the primary judge should have found that the Authority’s decision was affected by legal unreasonableness, as a result of its failure to get and consider new information before departing from a finding made by the delegate that he and his co-applicant were brothers. This was relevant to whether the appellant was a member of the same family unit as his co-applicant, who was ultimately granted a protection visa. The appellant submits that, in circumstances where the delegate’s finding was made after having interviewed the appellant and his co-applicant and viewing photographic evidence presented in those interviews, it was unreasonable for the Authority not to invite the appellant and his claimed brother to an interview and to obtain the photographs that had been shown to the delegate. The appellant argues that the present case is governed by the decision in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439.

4 Secondly, the appellant submits that the primary judge erred in concluding that, while the Authority had failed to comply with s 473DD of the Migration Act 1958 (Cth) when deciding whether to consider certain new information, that failure was not material to its decision. The appellant submits that the primary judge should have found that he was deprived of a realistic possibility of a different outcome, either in the exercise of the power to consider the new information or in the decision made on the review.

5 I have concluded that neither of the grounds of appeal is established. In relation to the first ground of appeal, the Authority identified sufficient reasons for departing from the delegate’s finding that the appellant and the co-applicant were brothers, and did not impermissibly rely on its assessment of their demeanour or the manner in which they presented at their interviews with the delegate. In relation to the second ground of appeal, even if the Authority had considered the new information, there was no realistic possibility that it would have made a different decision on the review. Accordingly, the appeal must be dismissed.

BACKGROUND

The protection visa application

6 The appellant is an Iranian citizen who arrived in Australia as an unauthorised maritime arrival on 24 October 2012.

7 On 4 July 2016, the appellant applied for a Safe Haven Enterprise visa, which is a class of temporary protection visa under s 35A(3A) of the Migration Act. The application was made jointly with a person who, it was claimed, was the appellant’s brother. As explained below, the existence of a familial relationship between the appellant and his claimed brother was a live issue before the Authority.

8 In broad terms, the appellant claimed to fear harm in Iran for reasons of his imputed political opinion, as an academic who had publicly expressed views that were critical of the Iranian authorities and that were considered to be anti-Islamic. In particular, he claimed that he had published a book on torture in Iran, for which his brother had assisted him with research. The appellant also claimed that he would face a risk of harm as a returned failed asylum seeker imputed with anti-government views.

9 On 20 February 2017, the appellant’s protection visa application was refused by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs.

10 Relevantly to the present appeal, the delegate was satisfied on the evidence that the visa applicants were brothers as claimed. However, the delegate found that the appellant and his brother were not members of the same family unit within the meaning of s 5 of the Migration Act, on the basis that the brother was not dependent on the appellant.

11 The delegate otherwise did not accept that protection obligations were owed in respect of either the appellant or his claimed brother for the purposes of s 36(2)(a) or (aa) of the Migration Act: J [10]–[11].

The Authority’s decision

12 On 8 November 2017, the Authority affirmed the decision not to grant a protection visa to the appellant: J [14]–[15].

13 In a separate decision given on the same day, the Authority found that the appellant’s claimed brother was a refugee based on a discrete claim that he had a well-founded fear of persecution in Iran for reasons of his homosexuality: J [12], [24]. Following remittal, he was granted a Safe Haven Enterprise visa on 1 December 2017. As a consequence, if the appellant had been able to establish that he was a member of the same family unit as his claimed brother, he would have satisfied the criterion for a protection visa in s 36(2)(b) or (c) of the Migration Act.

14 However, the Authority reached a different conclusion to the delegate on the question whether the appellant and his claimed brother were siblings. Based on its assessment of the evidence, but without interviewing the appellant or inviting him to provide copies of photographs that were presented to the delegate, the Authority was not satisfied that the two men were in fact brothers. Because the relevant photographs had not been retained by the delegate, they were not included in the review material that was provided to the Authority under s 473CB of the Migration Act: J [34].

15 The appellant contends that it was unreasonable for the Authority not to exercise its statutory powers to invite him to an interview or to obtain the photographs that were shown to the delegate, before finding that he was not related to his claimed brother. This contention is addressed by Ground 1 of the Notice of Appeal.

16 In making its decision, the Authority was satisfied that there were exceptional circumstances to justify considering a range of new information that could not have been provided to the Minister for the purposes of s 473DD of the Migration Act. However, the Authority declined to consider two classes of “new information” which it found did not meet the requirements of s 473DD, in that the Authority was not satisfied that there were exceptional circumstances to justify considering that information: J [18].

(a) The first class of new information (the Oncall information) comprised email correspondence from “Oncall Interpreters & Translators” dated 15 March 2017 that was said to be relevant to a question concerning the funds that were available to the appellant, which was in turn relevant to whether his assets had been confiscated or frozen by the Iranian authorities as he claimed.

(b) The second class of new information (the Dr Aidani information) comprised a letter dated 16 March 2017 from an academic, Dr Aidani, setting out an opinion in relation to the appellant’s academic and professional background.

17 The appellant contends that the Authority erred in its application of s 473DD to the Oncall information and that, but for this error, there was a realistic possibility that the Authority might have decided to consider that information and that the outcome on the review might have been different. This contention is addressed in Ground 2 of the Notice of Appeal.

18 In affirming the decision not to grant a protection visa to the appellant, the Authority was not satisfied that the appellant met the requirements of s 36(2)(a) or (aa) of the Migration Act: J [21]–[22] The Authority found that the appellant was not of any interest to the Iranian authorities at the time of his departure from Iran, and that he had not subsequently come to adverse attention from those authorities.

The primary judge’s decision

19 The appellant commenced proceedings in the FCFCoA seeking judicial review of the Authority’s decision on two grounds: J [27].

(a) First, the appellant alleged that the Authority’s failure to invite him or his claimed brother to an interview or to obtain the photographs that were presented to the delegate, before making a finding that they were not brothers, was unreasonable in the circumstances.

(b) Second, the appellant alleged that the Authority erred in its assessment of new information under s 473DD:

(i) in relation to the Oncall information, by failing to consider the criterion in s 473DD(b)(ii) before addressing whether there were exceptional circumstances to justify considering the new information within the meaning of s 473DD(a);

(ii) in relation to the Dr Aidani information, by conflating the substantive consideration of the information with the preliminary assessment of its credibility required by s 473DD.

20 The primary judge held that the Authority did not act unreasonably in choosing not to exercise its powers under s 473DC to obtain further information before it made a finding that the appellant and his claimed brother were not siblings. Her Honour accepted the Minister’s submission that there was no need for the Authority to get new information, whether by way of interview or by obtaining the photographs that were shown to the delegate, in circumstances where the delegate’s finding was not based on familial resemblance or demeanour: J [39]–[40]. Accordingly, the primary judge concluded that the Authority “was not obliged to obtain information before it took a different view as to the Delegate in circumstances where such a view was not reached on the same basis”: J [40]. In this regard, the primary judge distinguished the High Court’s decision in ABT17, on the basis that “the limited exception obligating the [Authority] to bridge an ‘informational gap’ arises only where a credibility determination is based on an applicant’s demeanour”: J [41].

21 The primary judge found that the Authority erred in applying s 473DD to the Oncall information: J [51]. That is, before addressing whether there were exceptional circumstances to justify considering the new information for the purposes of s 473DD(a), the Authority had assessed only whether that information met the criterion in s 473DD(b)(i) (information that could not have been provided prior to the delegate’s decision), and not also whether it met s 473DD(b)(ii) as credible personal information which, had it been known, might have affected the consideration of the appellant’s claims: see generally AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 at [11].

22 However, the primary judge found that this error was not material to the Authority’s decision: J [54]–[55]. Her Honour concluded that the appellant was not deprived of a realistic possibility of a different outcome on the review, in circumstances where the Authority had considered other evidence that the appellant had low funds in particular bank accounts but nevertheless found that he had been in possession of a substantial amount of money in July 2016, thereby undermining both his claim that his assets were frozen and his credibility more generally. In such circumstances, the primary judge agreed with the Minister’s submission that the Oncall information “add[ed] nothing to the pool of evidence” that was before the Authority, noting that it was apparent from the Authority’s examination of the Oncall information under s 473DD “that more information as to the [appellant’s] funds would not have been persuasive to the [Authority] nor led to a different outcome on the review”: J [55].

23 In relation to the Dr Aidani information, the primary judge (at J [61]) rejected the appellant’s submission that, in applying s 473DD(b)(ii), the Authority impermissibly went beyond considering whether the information was “credible” in the sense of capable of being believed or accepted, and instead considered whether or not the information was true: cf. CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41]–42; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150 at [62]–78, cf. at 2. This aspect of the decision below is no longer challenged on the appeal.

CONSIDERATION

Ground 1

24 The appellant maintains the first ground of review relied on before the primary judge, namely that it was unreasonable for the Authority not to have invited the appellant or his claimed brother to an interview, or to have obtained the photographs that were presented to, but not retained by, the delegate.

25 The particulars of this ground, which in substance reflect the particulars that were relied upon at first instance, are expressed as follows:

(a) The appellant and his brother had been co-applicants in their protection visa application.

(b) The delegate had interviewed the appellant and his brother in person and had the benefit of observing how they presented and considering their demeanour.

(d) The delegate accepted the appellant’s claim to be the brother of the co-applicant on his visa application.

(e) The [Authority] did not have the benefit of seeing the appellant or his brother give evidence or seeing the photographs presented in the interview.

(f) The [Authority] declined to invite either the appellant or his brother to an interview.

(g) The [Authority] failed to exercise its power to obtain the photographs from the appellant, his brother or their representative.

(h) The [Authority] departed from the delegate’s finding that the two men were brothers.

(i) The [Authority’s] finding was unreasonable in the circumstances.

(j) The primary judge erred in concluding that the [Authority’s] failure was not unreasonable, inter alia because her Honour erred in the application of the High Court’s decision in ABT17 v Minister for Immigration to the present case.

26 In order to address this ground of appeal, it is necessary first to set out the applicable criteria for the grant of protection visas to members of the same family unit, and then to identify the findings made by the delegate and the Authority respectively on this issue.

27 Section 36(2) of the Migration Act provided:

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i) is mentioned in paragraph (a); and

(ii) holds a protection visa of the same class as that applied for by the applicant; or

(i) is mentioned in paragraph (aa); and

(ii) holds a protection visa of the same class as that applied for by the applicant.

28 Accordingly, a person could meet the criterion for a protection visa under either s 36(2)(b) or (c) of the Migration Act if he or she was a “member of the same family unit” as a non-citizen who held a protection visa of the same class, being a person in respect of whom Australia had protection obligations within s 36(2)(a) or (aa) respectively.

29 For such purposes, s 5 of the Migration Act contained the following definitions of “member of the family unit” and “member of the same family unit”:

member of the family unit of a person has the meaning given by the regulations made for the purposes of this definition.

member of the same family unit: one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.

30 Regulation 1.12 of the Migration Regulations 1994 (Cth) defined “member of the family unit”. For the purposes of a protection visa, reg 1.12(4) provided:

(4) A person is a member of the family unit of another person (the family head) if the person is:

(a) a spouse or de facto partner of the family head; or

(b) a dependent child of:

(i) the family head; or

(ii) a spouse or de facto partner of the family head; or

(i) the family head; or

(ii) a spouse or de facto partner of the family head; or

(d) a relative, of the family head or of a spouse or de facto partner of the family head, who:

(i) does not have a spouse or de facto partner; and

(ii) is usually resident in the family head’s household; and

(iii) is dependent on the family head.

31 Regulation 1.05A(2) provided that a person was dependent on another person for the purposes of an application for a protection visa if the first person was “wholly or substantially reliant on the other person for financial, psychological or physical support”.

32 In the circumstances of the present case, the appellant’s claimed brother was ultimately found to be a person in respect of whom Australia had protection obligations, and he was granted a Safe Haven Enterprise visa. The appellant would be a member of the same family unit as his claimed brother if either was a member of the family unit of the other. The appellant’s claimed brother would be a member of his family unit if he was a relative who did not have a spouse or de facto partner, was usually resident in the appellant’s household, and was dependent on the appellant.

33 In reaching the primary decision, the delegate was satisfied that the co-applicants (the appellant and his claimed brother) were brothers.

The Applicants claim to be brothers. They have different surnames because they claim to have both independently changed their names (see below). The Applicants independently demonstrated considerable consistent biographical knowledge of each other and other family members. Applicant 2 also spontaneously presented photographic evidence of himself and Applicant 1 at a brother’s wedding approximately 7 years ago.

In an accompanying footnote, the delegate referred to “photographic evidence of brothers - presented at interview 27.10.2016 – other photographic evidence of the brothers was shown at this time but no copies of this evidence were retained”.

34 However, the delegate found that the appellant’s claimed brother was not dependent on the appellant within the meaning of reg 1.05A(2). Although the brother was usually resident in the appellant’s household, the delegate found that he was not wholly or substantially reliant on the appellant for financial, psychological or physical support.

35 On the review, the Authority refused a request made by the appellant’s legal representative for the Authority to interview the appellant and his claimed brother, stating:

11. The representative has also requested that the applicants be interviewed and submitted that where the case turns largely on an assessment of credibility it would be inappropriate to finalise the matter without doing so. I disagree. The applicants had lengthy protection visa interviews on 14 and 27 October 2017. Submissions were made to the delegate following the interviews, accompanied by additional information. Numerous credibility concerns were outlined in the delegate’s decision, and I have considered some of the new information submitted by the applicant in response, as discussed above. In these circumstances I have not invited the applicants to provide further new information, whether at an interview or in writing.

36 The Authority reached a different finding to the delegate on the existence of a family relationship between the appellant and his claimed brother.

(a) The Authority stated that “[b]eyond their own evidence, there is very little to indicate that the applicants are siblings”.

(b) The Authority placed significance on the fact that the applicants had different surnames. While the Authority accepted that the appellant’s claimed brother had changed his surname, it did not accept the appellant’s claim that he had previously shared the earlier surname with his claimed brother.

(c) The Authority considered a translation of an identity card for the appellant which evidenced the change of his surname, and indicated that his parents’ names were the same as those of the claimed brother. His father’s name, Ali, was also evidenced by other identity documents (his passport and motorcycle driving licence). However, the Authority noted that Ali was a common Muslim name, and placed “little weight on it as evidencing a relationship”. Further, the Authority referred to country information that civil documents in Iran could be obtained in a fraudulent manner and could be changed through bribery and connections.

(d) The Authority considered evidence of the appellant’s connection with other people who shared his current surname, including contacts and communications through social media. The Authority was not persuaded by the appellant’s explanation that he had sought out and befriended people with the same surname, and found that “[a] more plausible explanation is that these people are relatives”.

(e) The Authority found that, while the applicants had given consistent details of their claimed family, some elements of those details were problematic, such as a common mistake in providing the same incorrect year of birth for their mother, which could “indicate rehearsal”.

(f) The Authority relevantly found:

From the applicants’ travel from Iran and later to Australia together and their obtaining various identity documents around the same time, and photographs presented to the delegate, it appears that they were known to each other in Iran. I have considered that they have lived together as supposed siblings since their arrival, that the first applicant is a carer for the second applicant, that numerous agencies and professionals involved in their care and management appear to have accepted their claimed family relationship for close to five years, their father(s) has the same first name, and that the first applicant has a document indicating his name was changed from [the earlier surname]. However, the applicants have provided inconsistent and implausible evidence around the circumstances of their claimed name changes. The applicants have presented a complex, and in my view pre-meditated fabrication of events in a consistent manner over a substantial period of time, supported by what I have found to be unreliable documentation, and their claimed relationship is central to those claims. I give their evidence and documents little weight. Considering all of these matters, I am not satisfied that these men are in fact brothers.

37 It followed from this finding that the appellant could not satisfy the criteria for a protection visa in s 36(2)(b) or (c) of the Migration Act. The Authority stated:

As I am not satisfied that the first applicant is the brother of the second applicant, and no evidence has been presented to indicate that they are otherwise members of the same family unit, the first applicant does not meet the family unit criteria in either s.36(2)(b)(i) or s.36(2)(c)(i).

In the light of this finding, the Authority did not consider whether the appellant’s claimed brother was usually resident in the appellant’s household or was dependent on the appellant for the purposes of reg 1.12(4)(d).

38 It is clear that the Authority’s finding that the applicants were not brothers was material to the outcome of the review. But for that finding, there was at least a realistic possibility that the appellant might have established that he satisfied the criteria for a protection visa in s 36(2)(b) or (c) of the Migration Act on the basis that that he was a member of the same family unit as his brother, who had been granted a protection visa of the same class as that for which the appellant had applied.

39 The appellant submitted that the delegate found that the two applicants were brothers after observing them in an interview, including their physical appearance and mannerisms, and after having viewed the photographic evidence that was spontaneously produced by his brother at the interview. In contrast, the Authority relied only on the recordings of the interviews conducted by the delegate, and did not view the photographs presented to the delegate. The appellant submitted that, in order to bridge this “informational gap”, the Authority could have exercised its statutory powers to invite the appellant and his claimed brother to an interview and to request them to provide copies of the relevant photographs. In such circumstances, the appellant argued that it was legally unreasonable for the Authority to depart from the delegate’s finding without using its statutory powers to place itself in as good a position as the delegate to judge the credibility of the claim that the visa applicants were brothers: see ABT17 at [25], 30, 64.

40 The Minister submitted that any “informational gap” did not result in the Authority being disadvantaged in comparison with the delegate, because the Authority’s findings on the claimed family relationship did not rely on the demeanour of the appellant or his claimed brother nor the manner in which their evidence was given. Rather, the Authority found that the visa applicants were not brothers based on inconsistencies and implausibilities in their evidence, having regard to their identity documents and the country information. The Minister sought to distinguish the decision in ABT17 on the basis that, in the present case, the Authority did not make a credibility determination based on demeanour.

41 The general scheme of Part 7AA of the Migration Act contemplates that the Authority will review a fast track reviewable decision by considering the review material that is given to the Authority by the Secretary under s 473CB, without accepting or requesting new information and without interviewing the referred applicant: s 473DB(1). While the Authority has power to get new information that was not before the delegate, it does not have a duty to exercise that power, and can only consider any such new information in exceptional circumstances and subject to its satisfaction of specified criteria: ss 473DC, 473DD. The Authority is not generally required to notify a referred applicant if it adopts a different view of the material or makes different findings to the delegate: see DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 at [58], [69]–76; ALR17 v Minister for Home Affairs [2019] FCAFC 182 at [31]–32.

42 It is nevertheless accepted that the Authority must act within the bounds of reasonableness, both in the performance of the duty to review a referred “fast-track reviewable decision” and in exercising its statutory powers under ss 473DC and 473DD to get and consider new information: ABT17 at 3; cf. at 61, [80] (Gordon J), 128. As the decision in ABT17 demonstrates, compliance with the reasonableness condition can, in some circumstances, constrain the Authority from relying wholly or substantially on its own assessment of the manner in which in which the referred applicant’s account was given in an interview with the delegate, in order to form a different view as to the credibility of the applicant’s claims.

43 The plurality in ABT17 recognised the potential for an “informational gap” to arise in the review material in circumstances where the delegate conducted an interview in person with the referred applicant that was audio recorded, but not video recorded. Their Honours stated (ABT17 at 13):

Provision of the audio recording as part of the review material will then not put the Authority in the position of having and being able to examine for itself the totality of the information available to the delegate and required by the Code of Procedure to be considered by the delegate when making the referred decision. Missing from the review material will be a visual impression of how the referred applicant appeared during the interview – his or her demeanour.

This can in turn have an impact on the Authority’s assessment of the credibility of the referred applicant and his or her account: ABT17 at [14].

44 In ABT17, the Authority made adverse credibility findings based on its concern that the evidence given by the appellant in an audio-recorded interview “was generally lacking detail and at times vague and hesitant”: ABT17 at 15, 43, 86. On that basis, the Authority rejected a central claim advanced by the appellant, notwithstanding that the delegate had accepted that claim as plausible and consistent with country information.

45 The plurality in ABT17 held that, in the light of the Authority’s informational disadvantage in assessing credibility when compared to the delegate, it was unreasonable for the Authority not to have exercised its statutory power to get and consider new information by inviting the appellant to a further interview “so as to place itself in as good a position to assess credibility as had been the delegate”, including by assessing and considering the appellant’s demeanour for itself: ABT17 at [16]–[18], [29]–30. If the Authority had acted reasonably, it “would not have rejected the appellant’s account … on the basis of how he sounded on the audio recording without inviting him to a further interview so as to see him as well as hear him”: ABT17 at [29]. The plurality emphasised that the unreasonableness arose from the Authority’s failure to exercise the powers at its disposal to get and consider new information, rather than from its evaluation of the review material for itself to arrive at a different assessment of credibility than did the delegate: ABT17 at [30].

46 As was acknowledged by the plurality in ABT17, the mere fact that credibility is in issue or the Authority reaches a different view as to the credibility of the referred applicant, whether generally or in relation to specific claims, does not necessarily require the Authority to invite the applicant to an interview in order to bridge any “informational gap” compared with the delegate: ABT17 at [22]–24. Among other things, the Authority’s findings might rely on country information and other information contained in the review material, and “how the referred applicant may have presented in the interview with the delegate will not necessarily have a significant bearing on such assessment of his or her credibility as the Authority might reasonably undertake”: ABT17 at [22]. Thus, the decision might be made on a basis other than the applicant’s credibility, or an assessment of the applicant’s credibility might be based on matters other than demeanour. Further, it may be open to the Authority “to form its own assessment of credibility taking into account such second-hand description or impression of [the referred applicant’s] appearance as might be conveyed expressly or by implication in the statement forming part of the review material which sets out the delegate’s findings of fact and refers to the evidence on which those findings were based”: ABT17 at [23].

47 In making these observations, the plurality in ABT17 referred with approval to FND17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1369 at [39], where Griffiths J distinguished DPI17 v Minister for Home Affairs (2019) 269 FCR 134 and stated that, in order to establish that it was legally unreasonable for the Authority not to consider exercising its powers under s 473DC(3) to get and consider new information, something more was required than that the Authority reached different findings to those of the delegate. In ABT17, the plurality (at [25]) identified that additional aspect in the following terms:

[T]he Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given. That is what happened in this case.

48 Each of Nettle, Gordon and Edelman JJ adopted a different path of reasoning in ABT17. Their Honours concluded that it was unreasonable for the Authority to have departed from the credibility findings made by the delegate without having sufficient reason to do so. This was in contrast to the plurality, in so far as it did not contemplate that the Authority should (or even could) have exercised its power to get and consider new information by inviting the appellant to a further interview in order to assess his demeanour for itself.

(a) Thus, Nettle J considered that the task performed by the Authority was analogous to an appeal by way of rehearing, in which it was incumbent on the Authority to respect the delegate’s advantages in assessing the credibility of an applicant: ABT17 at [62]–[63], [70]. If the delegate’s findings were informed by an assessment of the applicant’s demeanour, it was legally unreasonable for the Authority to depart from those findings in the absence of demonstrated error, such as where the findings were contrary to incontrovertible facts or uncontested evidence, glaringly improbable, contrary to compelling inferences, or otherwise erroneous: ABT17 at [62]–[64], [66], [69].

(b) Similarly, Gordon J held that, in circumstances where the Authority had reviewed the audio recording of the appellant’s interview with the delegate without the benefit of having observed him giving evidence, it was legally unreasonable for the Authority to depart from the delegate’s findings about the credibility of the appellant’s evidence “without providing a sufficient reason”: ABT17 at [82], [87], [90]–[91]. Her Honour accepted that the Authority is entitled to reject findings based on demeanour “if they are glaringly improbable, or for some other sufficient and identified reason”: ABT17 at [87], referring to Fox v Percy (2003) 214 CLR 118 at 127–128 [27]–[28]; Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at 686–687 [43]. However, “[a]bsent such an analysis and an explication of the reasons for reaching a different conclusion, the Authority was bound to accept those findings of the delegate”: ABT17 at [87], and see also at [93].

(c) Justice Edelman agreed that the Authority, without having an opportunity to assess the applicant’s demeanour, “acted unreasonably by departing in its reasoning from the delegate’s finding that the appellant’s claims were plausible”, in circumstances where the delegate’s findings “were not contrary to incontrovertible facts or uncontested testimony, or glaringly improbable, or contrary to compelling inferences, or otherwise erroneous”: ABT17 at [112].

49 Whichever of the approaches in ABT17 is adopted, the question whether the Authority’s decision was legally unreasonable requires an examination of both the basis on which the delegate’s findings were made, and the basis on which the Authority departed from those findings or made different findings.

50 First, in making the relevant findings in the primary decision, the delegate must have relied to some extent on an assessment or perception of the applicant’s demeanour when interviewed, that is, on the manner in which the applicant’s account was given. In some cases, such reliance may be implicit in the delegate’s acceptance of particular claims made by the applicant, as was the case in ABT17 where the delegate had found that the applicant’s evidence was “plausible and broadly consistent with country information”: ABT17 at [40], [54], [66], [82], [87]; compare ABT17 v Minister for Immigration and Border Protection [2019] FCA 613 at 24.

51 Secondly, the relevant findings made by the Authority must have depended on its own assessment of the applicant’s demeanour in his or her interview with the delegate, for example, by reference to an audio recording or perhaps a transcript of the interview. The plurality in ABT17 contemplated that there might be scope for the Authority legitimately to rely on the delegate’s description or impression of the applicant’s appearance at an interview as conveyed by findings of fact in the statement of reasons that forms part of the review material: ABT17 at [23]. However, the Authority cannot generally substitute its own assessment of credibility based wholly or substantially on how the referred applicant may have presented in the interview with the delegate, or at least not without a video recording of the interview being available: see ABT17 at [25].

52 The same issues do not arise where the Authority reaches different credibility findings in circumstances where the applicant’s demeanour in the interview with the delegate does not have a significant bearing on those findings. The Authority might make different findings based on country information or other information contained in the review material, for example, where such material renders the account given by the applicant “inherently improbable”: ABT17 at [22], 28. Or the Authority might identify a basis on which, having regard to country information or other information contained in the review material, the applicant’s account is glaringly improbable or contrary to incontrovertible facts or compelling inferences, thereby providing sufficient reason to depart from the delegate’s findings: ABT17 at [62]–63, 87, 112; see also Lee v Lee (2019) 266 CLR 129 at [55]–56.

53 Questions might also arise as to what constitutes “demeanour” for such purposes. The concept encompasses the “visual impression of how the referred applicant appeared during the interview”: ABT17 at 13. This includes how the applicant presented in the interview and the manner in which he or she gave evidence. It is less clear whether the concept is capable of extending to visible features or characteristics that might be evident from seeing the applicant in person, including aspects of their physical appearance, in so far as such matters might potentially corroborate aspects of their claims. However, at least two judges in ABT17 seem to have proceeded on the basis that an assessment of the appellant’s demeanour in the interview included a demonstration by the appellant of scarring on his back that was claimed to have been inflicted by officers of the Sri Lankan Army, or perhaps the “manner” of that demonstration: ABT17 at [39], [53], [67]–68, 112; cf. AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407 at 41. For present purposes, it may be accepted that the visual impression of the appellant and his claimed brother at their interviews with the delegate is capable of giving rise to an “informational gap” between the delegate and the Authority respectively.

54 It should be noted that ABT17 does not exhaust the circumstances in which it might be legally unreasonable for the Authority not to exercise, or not to consider exercising, its powers under s 473DC to get and consider new information, including from the referred applicant. One example is provided by the decision in Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475, in which a new issue arose in the review that had not been the subject of any findings by the delegate, and in respect of which the Authority was aware that the referred applicant was likely to have information: see at 82. Other examples were canvassed by O’Bryan J with reference to several authorities in CVP17 v Minister for Immigration and Border Protection [2021] FCA 1502 at [46].

55 In the present case, the legal unreasonableness ground was argued by the appellant squarely on the basis of the decision in ABT17. Thus, it was submitted that the delegate had commented on the demeanour of the appellant and his claimed brother when giving evidence – referring, for example, to “[s]ome consistency and persuasiveness” in their accounts. The appellant submitted that, “[h]aving seen each of the appellant and [his claimed brother] give evidence in person, and having viewed the spontaneously produced photographs, the delegate made a finding that [they] were brothers”. The delegate’s acceptance of this claim was said to have been substantially based on the ability to observe their appearance in person and to form an impression of the way in which their evidence was given, along with the photographs that were viewed in the interview. The Authority, on the other hand, “had only the audio recording of the delegate’s interviews and the documentary evidence in the [Authority’s] file from which to conduct the review”, giving rise to an “informational gap” in the sense contemplated by ABT17.

56 As indicated in the Authority’s reasons, the appellant and his claimed brother were each interviewed twice for the purposes of their protection visa applications. It is not entirely clear from the delegate’s written reasons that these interviews were conducted by the delegate; for example, the delegate referred on several occasions to “recordings” of such interviews, perhaps suggesting that the delegate was relying on secondary evidence, and the reasons contain extracts from interview transcripts. However, as these proceedings have been conducted on the basis that the applicants were interviewed by the delegate who made the fast track reviewable decision, I will proceed on that assumption.

57 In so far as the delegate relied on the manner in which evidence was given, this was not universally favourable to the applicants. While their consistency in relating facts and details weighed in favour of accepting their claims, and the delegate found the oral testimony of the appellant’s claimed brother to be “compelling” and “particularly convincing” in some respects, the delegate nevertheless did not ultimately accept their claims in the light of “stronger” competing evidence which pointed to “a high degree of fabrication” by the applicants.

58 For present purposes, however, it is necessary to focus on the delegate’s finding in relation to the applicants’ claim that they were brothers, rather than the broader findings in relation to their protection claims. In accepting that the applicants were brothers, the delegate made the following findings:

(a) “They have different surnames because they claim to have both independently changed their names (see below).” It is not clear that the delegate fully accepted the applicants’ explanation for their different surnames. Each of the applicants had claimed to have changed his surname because of the “difficulty in pronouncing” it. While the appellant’s claimed brother presented a copy of his old Iranian passport which confirmed his former name, the delegate noted that the appellant had presented “no documentation evidencing his former surname”. More generally, the delegate did not accept the applicants’ evidence that they had changed their names in response to an official pronouncement or public proclamation, finding that this claim was not supported by country information.

(b) “The Applicants independently demonstrated considerable consistent biographical knowledge of each other and other family members.”

(c) “Applicant 2 also spontaneously presented photographic evidence of himself and Applicant 1 at a brother’s wedding approximately 7 years ago.” The delegate referred in the accompanying footnote to “photographic evidence of brothers” that was presented at the interview on 27 October 2016, noting that “other photographic evidence of the brothers was shown at this time but no copies of this evidence were retained”. It is not entirely clear what the other photographic evidence depicted, if it was different from the photographs of the appellant and his claimed brother together at a wedding in around 2009.

59 The extent, if any, to which the delegate relied on observations of the appellant and his claimed brother in the course of their interviews was not made explicit in the statement of reasons. There was neither express reliance, nor express disavowal of reliance, on demeanour: cf. Prouten v Chapman [2021] NSWCA 207 at 15. In particular, there was no mention by the delegate of any familial resemblance between the two applicants, nor any similarities in their physical appearance or mannerisms. Counsel for the appellant submitted that it was “self-evident” that the delegate’s finding would have been informed by the opportunity to see the applicants in person, and the manner in which they presented in the interviews. This included matters such as the “spontaneous” manner in which the photographic evidence had been produced by the appellant’s claimed brother. In my view, there is no foundation in the statement of reasons for an inference that the delegate’s finding was based on any perceived physical resemblance between the appellant and his claimed brother. Nevertheless, I accept that the delegate’s satisfaction that the applicants were brothers as claimed might conceivably have been informed by their demeanour and how they presented at the interviews more generally.

60 The Authority was not satisfied that the applicants were brothers, having considered the following matters.

(a) The Authority placed most significance on the difference in the applicants’ surnames. While accepting that the claimed brother had changed his surname, the Authority did not accept that the appellant had ever shared the same surname with his claimed brother. The Authority found that the appellant’s evidence regarding the reason for changing his name was not supported by country information, and that this undermined his claim to have changed his name in such circumstances.

(b) The Authority had regard to various documents that linked the appellant to the same former surname or common parentage with his claimed brother. However, the Authority observed that it was possible to obtain legal documents in Iran “through bribery and connections”.

(c) The Authority referred to the appellant’s connection on social media with a number of other people who shared his current surname, and was not persuaded by his explanation that he had “sought out and befriended people of the same name”. Rather, the Authority considered that it was more plausible that those people were relatives of the appellant (which would undermine his claims regarding his name change).

(d) While the Authority accepted that the applicants had given “consistent details of their claimed family”, it found that some elements of those details were “problematic” and “could also indicate rehearsal”.

(e) The Authority accepted that the applicants “were known to each other in Iran”, based on their joint travel from Iran to Australia, the fact that they had obtained identity documents at around the same time, and the “photographs presented to the delegate”. The Authority also accepted that they had lived together in Australia “as supposed siblings”, and that a number of agencies and professionals involved in their care and management had accepted their claimed family relationship.

(f) The Authority took into account that the appellant had an identity document indicating that his name was changed from his claimed brother’s former surname, and that they each had a father with the same first name. As explained elsewhere, the Authority did not place much weight on each of those matters.

(g) The Authority ultimately gave little weight to the applicants’ evidence and documents, finding that they had provided “inconsistent and implausible evidence around the circumstances of their claimed name changes”, and that they had presented a “pre-meditated fabrication of events” to which their claimed relationship was central, supported by unreliable documentation.

61 The Authority did not depart from the delegate’s finding that the applicants were brothers by relying wholly or substantially on its own assessment of their demeanour in their interviews with the delegate, nor on the manner in which their evidence had been had presented in those interviews. Rather, the Authority relied on the review material in making its own finding as to the credibility of the claimed sibling relationship. The applicants’ demeanour and manner of presentation did not have a significant bearing on the Authority’s assessment of their credibility. Even if the delegate had taken into account the visual impression of how the applicants appeared during the interview, the Authority explained why it regarded the claimed sibling relationship (and the delegate’s acceptance of that claim) as inherently improbable by reference to the review material. In so doing, the Authority provided reasons for departing from the delegate’s finding which were independent of any impression or assessment of the applicants’ demeanour in their interviews. The High Court’s decision in ABT17 can be distinguished on this basis.

62 In so far as the delegate relied on the photographs that were shown in the interview with the appellant’s claimed brother, including photographic evidence of them together at a wedding in around 2009, the Authority accepted that those photographs were capable of establishing that applicants were known to each other in Iran. However, that did not of itself lead to a finding that they were brothers. It appears that, because the photographs in question were not retained by the delegate, they were not included in the review material that was given to the Authority by the Secretary pursuant to s 473CB of the Migration Act: compare AWV18 v Minister for Home Affairs (No 3) [2020] FCA 365 at [67], [69]–71; cf. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 (2021) 285 FCR 381 at [54], [68]–75; BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 565 at [35]–[37], [75], [78]–[79], [84], [91]–[93], [101]–103. To the extent that this gave rise to an “informational gap”, it did not of itself require the Authority to exercise its powers to get and to consider those photographs (assuming that it had power to do so): see ABT17 at 22. The Authority was aware that the photographs had been presented to the delegate, and accepted this as evidence that the applicants knew each other in Iran. In so far as the “spontaneous” manner in which the photographs were presented had any bearing on the applicants’ credibility, this was adequately conveyed as a “second-hand description or impression” made by the delegate in the statement of reasons: see ABT17 at 23.

63 Accordingly, having regard to the basis on which the Authority rejected the claimed sibling relationship, the Authority was not in position of disadvantage compared with the delegate. The appellant has not established that it was legally unreasonable for the Authority not to have interviewed the appellant or his claimed brother or to have obtained the photographs as “new information”, nor that it was legally unreasonable for the Authority to reject the claimed sibling relationship without having conducted such interviews or viewed the photographs.

64 For these reasons, I reject Ground 1.

Ground 2

65 The appellant claimed during his interview with the delegate that his assets had been frozen by the Iranian authorities after he was arrested in Iran, as a consequence of which he was living “entirely on Centrelink money having no other source of income and with no one in Iran giving him money”.

66 During his interview, the appellant was asked to respond to information that he had been in possession of a sum of $17,000, which the delegate regarded as inconsistent with the appellant’s “claimed impecuniousness”. In post-interview submissions dated 3 November 2016, the appellant’s legal representative addressed the applicants’ finances as follows:

The applicants confirm that [as] far as they are aware, their assets in Iran were frozen and, they understand, confiscated. They have no knowledge of any sizeable amounts in their accounts and confirm that the only income they have received is the social security payments. Someone in the community also lent them some money to cover a bond for their house and this was then repaid.

67 The appellant’s representative made further submissions to the delegate dated 8 December 2016, in which it was relevantly stated:

As previously set out, the applicants instruct they have no knowledge of any sizeable amounts of money being in their accounts. At interview with [the appellant] you said that the Department of Border Patrol (DIBP) has been advised that there was recently $17,000.00 in [the appellant’s] account. Without further information it is difficult to address this concern but we suggest that it may be a matter of mistaken identity. I enclose copies of both brothers’ bank accounts from the time of their arrival in Australia which confirm that the applicants have had only very limited funds at any given time and that they have relied on social security payments to survive.

The appellant’s representative pressed the Department to provide further information about this issue in order to give them a proper opportunity to address the delegate’s concerns.

68 The delegate was not satisfied that the appellant’s funds were frozen by the Iranian government. Among other things, the delegate found that the appellant had not explained the inconsistency that arose from the information that he had been in possession of a substantial sum of money, and treated that information “as evidence that his assets were not frozen as claimed and as further evidence against his claimed arrest and imprisonment”.

69 In submissions made to the Authority dated 16 March 2017, the appellant’s legal representative requested that information relating to the applicants’ access to substantial sums of money be made available to them. The representative also provided a copy of an email dated 15 March 2017 from the “Accounts Manager Coordinator” of Oncall Interpreters & Translators (i.e. the Oncall information), which was relied on as “further documentation of a claim consistently made by the applicants being that they have very limited funds available to them”. In this email, the Accounts Manager Coordinator relevantly stated:

We are already working on the translation requested. However, there are not sufficient funds to process the payment. Could you please advise the client in regards to this.

70 The appellant provided to the Authority a further statutory declaration dated 16 March 2017, in which he denied any knowledge about “any large sums of money”, and reiterated that the applicants had relied on charity and social security to survive after they came to Australia.

71 On 20 October 2017, the Authority sent an email to the appellant’s legal representative, in response to the request for information about the substantial sum of money that was said to have been accessible to the applicants:

Regarding access to money, there is information from an Australian Government agency indicating that a person with the name and identity documents of [the appellant] was in possession of a sum of approximately $17,000 in July 2016. We note that this information is covered by a direction under s.473GD (attached).

The attached direction under s 473GD(1) of the Migration Act restricted the publication or disclosure of the information contained in the Authority’s email.

72 On 2 November 2017, the appellant’s legal representative provided a response to the Authority’s email which relevantly stated:

With respect to the financial information, [the appellant] reiterates his instructions that he knows nothing about the money purported to be held by someone with his details. We add that without further detail, this information is also incapable of being fairly challenged or interrogated by the applicants.

73 The Authority did not accept that the appellant’s assets had been frozen, and regarded this as undermining the appellant’s credibility. After recounting the claims and evidence before the delegate, the Authority stated:

Copies of records from a bank account of each applicant were given, evidencing relatively low funds since the time of their arrival. In his statutory declaration submitted to the IAA the first applicant claims that he does not know about any large sums of money and was surprised when it came up. Submissions of 2 November 2017 reiterate his lack of knowledge.

The delegate disclosed to the applicants the sum of money involved and that it was held in a bank account. The IAA further disclosed that the information was received from a government agency, the timing of the applicant’s possession of the money, and that the person involved had his name and identity documents. I do not accept the submission that the information is incapable of being fairly challenged or interrogated.

I do not accept there is a case of mistaken identity or that the applicants would have required $17,000 to pay a bond for their house. The bank account records show only that the applicants have not had large amounts of money in those particular accounts. I find the information from the Australian Government agency reliable and find that the first applicant had a sum of around $17,000 in July 2016. In the absence of a credible explanation as to its source, the first applicant’s possession of this money undermines his claims that his assets were frozen. His evasiveness on this issue and inconsistent evidence as to whether or not he had a large amount of money undermines his credibility more generally.

74 In reaching this conclusion, the Authority had decided not to consider the Oncall information under s 473DD of the Migration Act, finding that it was new information that did not satisfy the statutory requirements. The Authority stated:

Email correspondence from Oncall dated 15 March 2017 submitted on 16 March 2017. This email concerns the applicant’s funds at a time post-dating the decision, relevant to adverse information put to him and relied on by the delegate. However, the applicant provided copies of bank statements to the delegate demonstrating a relatively low balance. Information that there were insufficient funds in whatever account was provided to Oncall for payment in March 2017 does not, without more, add anything further. While I am satisfied the information could not have been provided prior to the decision being made I am not satisfied that is an exceptional circumstance to justify considering this particular new information, or that there are otherwise exceptional circumstances to justify its consideration.

75 Section 473DC of the Migration Act conferred power on the Authority to get “new information”, being documents or information that were not before the delegate when making the fast track reviewable decision and that the Authority considers may be relevant. However, such new information could only be considered by the Authority in accordance with s 473DD, which provided as follows:

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.

76 Once the Authority got any new information, it was under a duty to assess that information against the criteria specified in s 473DD: AUS17 at 6. In doing so, the Authority was required first to assess the information against the criteria in both s 473DD(b)(i) and (ii), before considering in the light of the outcome of that assessment (if either or both of the criteria were satisfied) whether there were exceptional circumstances to justify considering the information for the purposes of s 473DD(a): AUS17 at [11]–12, cf. at [23]–25.

77 In the present case, the primary judge (at J [51]) upheld the appellant’s submission that the Authority erred by finding that there were no exceptional circumstances under s 473DD(a) without addressing whether the Oncall information was “credible personal information” which might have affected the consideration of the appellant’s claims within the meaning of s 473DD(b)(ii). Although the Authority was satisfied that the criterion in s 473DD(b)(i) was met, this did not relieve it of the obligation to assess the Oncall information against the criterion in s 473DD(b)(ii) and to take the outcome of that assessment into account when considering whether there were exceptional circumstances to justify considering that information. The plurality in AUS17 explicitly stated that, if both criteria in s 473DD(b)(i) and (ii) were met, that was a circumstance which was required to be factored into the subsequent assessment under s 473DD(a) “and which must heighten the prospect of that criterion being met”: AUS17 at 11.

78 The Minister does not challenge the primary judge’s finding that the Authority erred in its application of s 473DD to the Oncall information. However, the Minister submits that this error was not material to the Authority’s decision. The primary judge accepted that submission below, concluding that the appellant had not been deprived of a realistic possibility of a successful outcome by reason of the decision not to consider the Oncall information: J [54]–[55]. This was because the Oncall information added nothing to the evidence that was before the Authority in relation to the appellant’s claimed lack of funds, such that “more information as the [appellant’s] funds would not have been persuasive to the [Authority] nor led to a different outcome on the review”: J [55].

79 The primary judge’s conclusions on materiality were not perfectly expressed. An error will be material to the decision, so as to give rise to jurisdictional error, if there was a realistic possibility that the outcome could have been different if the error had not occurred: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321 at [7], [14]–16. Once such a realistic possibility has been established, the threshold of materiality will have been met, unless “there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made”: LPDT at [16]. To maintain the line between judicial review and merits review, the court “must be careful not to assume the function of the decision maker”: LPDT at [15].

80 In the present case, the primary judge’s statement that more information about the appellant’s funds “would not have been persuasive” to the Authority may be open to criticism on two fronts: first, in so far as it suggested that the appellant was required to demonstrate that the Oncall information would have made a difference to the outcome, as opposed to establishing a realistic and non-fanciful possibility that it could have made a difference; and secondly, in so far as it was directed to how “persuasive” the information would have been to the Authority, which has the potential to cross the line into merits review. It might be argued that, in concluding that the additional information would not have led to a different outcome on the review, the primary judge was doing no more than excluding any realistic possibility that there could have been a different outcome. However, the primary judge had earlier (at J [52]) framed the inquiry as to materiality in terms of whether the decision not to consider the Oncall information “would have made a difference” to its decision, which is accepted by both parties to have erroneously applied a threshold that was too high.

81 The question remains whether the Authority’s error in failing to address the criterion in s 473DD(b)(ii) was material to its decision to affirm the refusal to grant the appellant a protection visa.

82 The appellant submitted that the proper approach to this question turned on whether the error was material to the Authority’s decision whether or not to consider the Oncall information under s 473DD, as opposed to whether or not the failure to consider that information was material to the outcome of the review.

83 The distinction between these two approaches was identified by Owens J in DYA16 v Minister for Immigration and Citizenship [2025] FCA 864 at [33]:

There is a question as to the correct identification of the “outcome” in relation to which materiality is to be assessed in the context of a failure to comply with s 473DD:

(a) On one view, which finds expression in the decision in DPT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 15 (Colvin J), the question is whether the absence of error could realistically have resulted in the Authority deciding that the new information could be considered (see especially at [52]).

(b) The contrary view, which has been adopted in cases including those collected in AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90 at 80, is that the error must be shown to have been material to the Authority’s ultimate decision. Such an approach thus requires the demonstration of a realistic possibility that Authority might have determined that the new information could be considered and that, had it done so, the application as a whole might have been decided differently.

84 It was unnecessary for Owens J to resolve that question in DYA16 because it was not in dispute that one of the categories of new information would have been material to the outcome of the review if it ought to have been considered, and the other category of new information could not have been material either to the decision not to consider the information or to the ultimate outcome: DYA16 at [34]. In such circumstances, the issue for determination in DYA16 was whether there was a realistic possibility that the Authority might have been satisfied that the first category of new information was “credible personal information” within the meaning of s 473DD(b)(ii).

85 In DPT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 15, Colvin J was not satisfied that the Authority’s failure properly to consider the criteria in s 473DD(b)(i) and (ii) was material to its decision not to consider new information, in circumstances where there was no basis for concluding that the Authority might have otherwise adopted a different approach to the consideration of that information : DPT17 at [47]. Nevertheless, his Honour did not accept an argument advanced by the Minister that, even if the new information had been considered by the Authority, it could not realistically have resulted in a different outcome in the review, observing that it was “not proper to approach the question of materiality [in] that way”: DPT17 at [48]–[49]. After distinguishing cases in which the complaint was one of procedural error in the course of the substantive review, Colvin J stated (at [49]–[52]):

In the present case, the extent of procedural power depends upon the operation of s 473DD. It does not authorise the receipt of information that must not be considered by reason of s 473DD. However, no part of the substantive review (or the procedure to be followed in undertaking that review) involves forming the states of satisfaction that must be formed to determine whether new information cannot be considered. Rather, the review is conducted within the limit established by s 473DD.

Put another way, the formation of the states of satisfaction for the purposes of s 473DD were a necessary preliminary statutory step that determined the extent of the information in respect of which the Authority then had a procedural power to decide whether to “get, request or accept” new information (see s 473DC). The formation of the views required by the terms of s 473DD were not part of the procedure for the substantive adjudication to be undertaken by the Authority. Rather, they determined the scope of the information that the Authority must not consider. Once the requisite states of satisfaction had been formed, there was no procedure that the Authority could adopt (validly) to receive that excluded information. By operation of s 473DD it was out of bounds. Therefore, s 473DD established a jurisdictional limit upon the Authority’s decision-making power in undertaking a review under Part 7AA.

In consequence, a material failure to conform to the requirements of s 473DD did not form part of the review. Likewise, a material consequence of such failure for the review could not be said to be a material failure to conform to s 473DD. It was only the extent of the failure to conform to s 473DD that had to be material in order for there to be invalidity in the actions that purported to discharge the statutory duty imposed by the provision (which was not a duty to determine the review).

Materiality is a principle of statutory construction by which a statutory provision is “ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance”: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 (Kiefel CJ, Gageler and Keane JJ). The present case concerns the proper construction of s 473DD(b). It incorporates a threshold of materiality. If the correct application of s 473DD could realistically have resulted in the consideration of the new information by the Authority then there has been invalidity in the discharge of the statutory duty. It is no less material if it might be concluded that the failure to comply with s 473DD was not likely to have affected the ultimate decision by the Authority.

86 Although Colvin J considered that “the invalidating effect of any failure to conform to the requirements of s 473DD would concern the operation of that provision in curtailing the information that the Authority might receive”, his Honour did not foreclose the question whether this would result in jurisdictional error affecting the outcome on the review: DPT17 at [54]. In this regard, Colvin J observed that “a question may arise as to whether, as a matter of statutory construction, a material failure to comply with s 473DD will affect the validity of the ultimate decision irrespective of whether it was demonstrated that the ultimate outcome on the review could realistically have been different if there was compliance with the requirements of s 473DD”: ibid. It was unnecessary for Colvin J to address that question, as he had concluded that the Authority’s failure to conform to the requirements of s 473DD was not material to its performance of the statutory duty imposed by that section. His Honour also adverted to the possibility that relief might be refused on discretionary grounds “in respect of a demonstrated material failure to conform to the requirements of s 473DD if it was shown that the relief would be futile because the correction of the failure could not lead to a different outcome”: DPT17 at [55].

87 The competing approaches were canvassed by Banks-Smith and Jackson JJ in AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90 at [78]–[81]; cf. at [181]–183. On the facts of that case, their Honours considered that, even if it were necessary to assess materiality having regard to the overall outcome on the review, the error made by the Authority in applying s 473DD was material to the outcome in the requisite sense. The question as to which of the competing approaches is correct was similarly left unresolved by Stewart J in BYT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 157 at [36]–[39] and by Burley J in ACN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 724 at [18]–[19], in the former case because the error was material to both the decision under s 473DD and the outcome on the review, and in the latter case because the error was not material either to the procedural decision not to consider the information or to the substantive outcome: BYT17 at [46]–[51]; ACN20 at [25]–[27].

88 The matter was taken further by Feutrill J in AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FCA 1223 at [96]–[109], although it was also unnecessary for the point to be decided in that case. His Honour distinguished (at [101]) the procedural decision made by the Authority about the information that it must and must not consider in the substantive review, and the consideration of that information by the Authority in the substantive review, before stating (at [102]–[104]):

The exercise of the procedural power in s 473DD requires the Authority to form states of mind. Those states of mind must be formed correctly and according to law. An incorrect formation of the states of satisfaction in s 473DD may mean that “new information” the Authority was required to consider in the substantive review was not considered or that “new information” the Authority was required to disregard was considered in the substantive review. That is, non-compliance with s 473DD could, but need not, result in the Authority failing to take into account a relevant consideration or taking into account an irrelevant consideration in the exercise of the substantive power of review. Therefore, it stands to reason, that mere non-compliance with s 473DD could not be regarded as an error that, irrespective of the nature of that error, would render the exercise of the substantive review power unauthorised. Thus, non-compliance with s 473DD must be material to the exercise of the substantive review power in order for such a non-compliance to render the Authority’s ultimate decision unauthorised.

What then is the nature of the enquiry into whether the outcome of the exercise of the substantive review could realistically have been different if error in the formation of the s 473DD state of satisfaction had not been made?

There are two points of the decision-making process at which non-compliance with s 473DD could have affected the ultimate outcome of the substantive review. First, if the absence of error could not realistically have resulted in the Authority forming the states of satisfaction in s 473DD(a) and s 473DD(b) differently, then plainly it could not have affected the substantive outcome because it could not have resulted in the Authority failing to take into account a relevant consideration or taking into account an irrelevant consideration. On the other hand, if the absence of error could realistically have resulted in the Authority forming the states of satisfaction differently, then obviously there could have been a failure to take into account a relevant consideration or an irrelevant consideration could have been taken into account. Second, if that relevant consideration or irrelevant consideration could not realistically have resulted in a different outcome in the substantive review, then, again, the error would not be material and result in an unauthorised exercise of power. However, if that relevant or irrelevant consideration could have realistically resulted in a different substantive outcome, the error would be material and would result in an unauthorised exercise of power. Put another way, where a non-compliance with s 473DD means that ‘new information’ could realistically have been taken into account and that information could realistically have made a difference to the outcome of the substantive review, then, as a matter of reasonable conjecture, the absence of error could have resulted in a different outcome in the substantive review. That is sufficient to meet the threshold test of materiality.

(Emphasis in original.)

89 In the present case, the Minister submitted that the error by the Authority in applying s 473DD to the Oncall information was not material, on either of the two approaches discussed above.

90 It is common ground between the parties that, at the very least, it is necessary for the appellant to establish that the Authority’s error was material to its decision whether the Oncall information could be considered as new information under s 473DD. The Minister submitted that there was no realistic possibility that the Authority could have made a different decision under s 473DD, even if it had considered that the Oncall information satisfied the criterion in s 473DD(b)(ii) as credible personal information that, had it been known, may have affected the consideration of the appellant’s claims. In this regard, the Minister referred in particular to the Authority’s finding that the Oncall information “does not, without more, add anything further” to the information provided by the appellant in the form of bank statements demonstrating a “relatively low balance”. The Minister submitted that the Authority’s reasoning process was that the Oncall information “added nothing to the pool of evidence before the Authority on the issues that it went to”, namely the appellant’s lack of funds, and that it was unrealistic (in the sense of fanciful or improbable) to suggest that the Authority might have changed that view.

91 I note that, in giving its reasons for its finding that the Oncall information did not satisfy the requirements of s 473DD, the Authority was not satisfied that it was an exceptional circumstance to justify considering the Oncall information that information could not have been provided to the delegate prior to the decision, nor “that there are otherwise exceptional circumstances to justify its consideration” (emphasis added). It can be argued that the Authority did not limit its consideration of exceptional circumstances for the purposes of s 473DD(a) to the criterion in s 473DD(b)(i), but had regard more generally to whether there were exceptional circumstances to justify considering the Oncall information. Nevertheless, the Minster does not dispute that the Authority did not specifically address the criterion in s 473DD(b)(ii) or turn its mind to whether the Oncall information was credible personal information which, had it been known, may have affected the consideration of the appellant’s claims.

92 On balance, I do not accept the Minister’s submissions that the Authority’s error was not material to its decision not to consider the Oncall information under s 473DD. In my view, there was a realistic possibility that, if the Authority had not erred in its application of s 473DD, it might have been satisfied that the Oncall information met the criterion in s 473DD(b)(ii) and that this might have heightened the prospects that s 473DD(a) was met: see AUS17 at 11. Accordingly, I consider that the Authority’s legal error was material to its finding that there were no exceptional circumstances to justify considering the Oncall information and that the requirements of s 473DD were not satisfied in relation to that information.

93 However, contrary to the appellant’s submissions, I do not consider that this is itself sufficient to establish that the “threshold of materiality” was met in relation to the Authority’s decision on the review under s 473CC. It is that decision that was the subject of the judicial review application made to the FCFCoA, and in respect of which the appellant seeks relief on the appeal to this Court. In order to establish a right to such relief, the appellant must establish that the Authority’s decision was affected by jurisdictional error: see s 474 of the Migration Act; cf. Plaintiff S157 / 2002 v Commonwealth (2003) 211 CLR 476 at [81]–[83]. In my view, it is therefore necessary for the appellant to establish that the error affecting the Authority’s procedural decision that the Oncall information did not satisfy the requirements of s 473DD was material to its ultimate decision on the review, in the sense that the failure to consider the Oncall information deprived him of a realistic possibility of a different decision on the review if the information had been considered. For such purposes, a realistic possibility is one that is not fanciful or improbable, and the threshold of materiality is “not demanding or onerous”: LP DT at [14].

94 Accordingly, I agree with Feutrill J in AAI20 that non-compliance with s 473DD does not of itself give rise to jurisdictional error in the exercise by the Authority of the substantive power to review the referred decision, unless such non-compliance is material to the exercise of that power so as “to render the Authority’s ultimate decision unauthorised”: AAI20 at [102]. Assuming that the error was material to the Authority’s finding or conclusion that the new information did not meet the requirements of s 473DD, the Authority would have failed to have regard to information that it was bound to take into account in making its decision: see AUS17 at 6. If consideration of the new information could realistically have resulted in a different decision on the review, the failure to take the information into account would be material to the decision and would amount to jurisdictional error: AAI20 at 104. However, jurisdictional error will not be established if there is no realistic possibility that the decision on the review could have been different, or if there is an identified basis on which it can be affirmatively concluded that the outcome would inevitably have been the same.

95 For completeness, I do not regard this analysis as inconsistent with the reasons of Colvin J in DPT17. While recognising that compliance with s 473DD was a preliminary step which governed the information that the Authority was authorised and required to consider in the performance of its review function, his Honour explicitly left open the question “whether, as a matter of statutory construction, a material failure to comply with s 473DD will affect the validity of the ultimate decision irrespective of whether it was demonstrated that the ultimate outcome on the review could realistically have been different if there was compliance with the requirements of s 473DD”: DPT17 at [54]. In my view, that question should be answered in the negative. Section 473DD should be construed in accordance with the principle that “a statute conferring decision-making authority is not ordinarily to be interpreted as denying legal force to every decision made in breach of a condition which the statute expressly or impliedly requires to be observed in the course of a decision-making process”, but rather as “incorporating a threshold of materiality in the event of non-compliance”: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 at 31, referring to Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [29]–30.

96 It remains to consider whether there was a realistic possibility that the Authority could have made a different decision on the review if it had considered the Oncall information. In my view, no such possibility has been established.

97 The Oncall information was potentially relevant to the claim that the Iranian authorities had confiscated or frozen the appellant’s assets in Iran. Each of the delegate and the Authority rejected that claim, having placed significant weight on information that the appellant had been in possession of a substantial sum of money and had not provided a credible explanation of the source of those funds. The appellant had denied any knowledge of this money, and maintained that he had not received any income other than social security payments, apart from a loan for a rental bond that had since been repaid. For such purposes, the appellant’s legal representative had provided bank account records as evidence of the limited funds available to the appellant. While the Authority had regard to those bank records, they showed “only that the applicants have not had large amounts of money in those particular accounts”. The Authority accepted as reliable the information that the appellant had a sum of $17,000 in July 2016, and found that the appellant’s failure to provide a credible explanation as to the source of that money undermined his claim that his assets had been frozen by the Iranian government. This led to a general adverse credit finding, based on the appellant’s “evasiveness on this issue and inconsistent evidence as to whether or not he had a large amount of money”.

98 In such circumstances, if consideration of the Oncall information might have led to a different finding on the appellant’s claim that his assets had been frozen in Iran, there would be a realistic possibility that the outcome of the review could have been different. However, in my view, there is no prospect, or alternatively no more than a remote or fanciful prospect, that the Authority might have accepted that the appellant’s assets had been frozen if it had considered the Oncall information as new information under ss 473DC and 473DD. That information was probative of the insufficiency of funds in a particular account on a particular date in order to process a payment to Oncall for translation services. As the appellant’s legal representative submitted, the Oncall information was relied upon as “further documentation of a claim consistently made by the applicants being that they have very limited funds available to them”. As such, it had no greater forensic significance than the bank account records on which the appellant had relied to show his limited funds and to rebut the adverse information that he was in possession of an amount of $17,000 in July 2016. However, evidence that the appellant did not have large amounts of money in particular bank accounts did not impugn the reliability of the adverse information, which was accepted by the Authority.

99 The immateriality of the Oncall information was revealed by the Authority’s reasons for deciding not to consider that information under s 473DD. Although the Authority erred by failing to consider whether the Oncall information met the criterion in s 473DD(b)(ii), it nevertheless made it clear that such information did not “add anything further” to the bank records – the former showed that “there were insufficient funds in whatever account was provided to Oncall for payment in March 2017”, and the latter demonstrated that there was a “relatively low balance” in particular bank accounts held by the appellant. In circumstances where the Authority did not regard the bank records as rebutting the adverse information that the appellant had been in possession of a substantial sum of money, there is no realistic possibility that consideration of the Oncall information could have resulted in the Tribunal accepting the appellant’s claim that his assets had been frozen in Iran, and thereby possibly resulting in a different decision on the review.

100 To be clear, this conclusion does not rest on any “reconstruction” of the Authority’s reasons, ignoring the effect of its error in the application of s 473DD to the Oncall information, nor does it require any speculation about the findings that the Authority might have made but for that error: cf. LPDT at [29], 36; EAC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1657 at 50, referring to Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66 at 70. As Bell, Gageler and Keane JJ observed in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [48], while being careful not to intrude into the fact-finding function, the court must nevertheless “be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the [decision-maker’s] failure to take it into account could not realistically have affected the result”. In the present case, it is clear from the findings made by the Authority that consideration of the Oncall information could not have affected its decision on the review.

101 I therefore reject Ground 2.

CONCLUSION

102 For the reasons set out above, neither of the grounds of appeal has been established. Accordingly, the appeal is dismissed with costs.

| I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Horan. |
Associate:

Dated: 2 April 2026

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