BESANKO J:
1 This is an application for an extension of time within which to appeal from orders made by the Federal Circuit Court of Australia with respect to an application for constitutional writs in relation to a decision of the Immigration Assessment Authority (the Authority) under Part 7AA of the Migration Act 1958 (Cth). The Federal Circuit Court made an order that the amended application for judicial review be dismissed (AVN17 v Minister for Immigration & Anor [2017] FCCA 2524). The application for an extension of time was made five days after the expiration of the 21 day time period in which the applicant was required to file and serve a Notice of Appeal from the orders made by the Federal Circuit Court (Federal Court Rules 2011 (Cth) r 36.03).
2 The applicant is a national of Sri Lanka. He arrived in Australia as an unauthorised maritime arrival on 28 August 2012. He lodged an invalid application dated 6 September 2013 for a Protection visa, subclass 866. On 16 October 2015, he lodged an application for a Safe Haven Enterprise visa (SHEV), subclass 790. On 15 December 2016, a delegate for the Minister of Immigration and Border Protection refused to grant the visa. The Authority affirmed the decision not to grant the applicant a visa.
3 The matters which are relevant to the question of whether or not an extension of time should be granted are well-known. They are the length of the delay, the explanation for the delay, the merits of the substantive application, the prejudice to the applicant if an extension of time is not granted, the prejudice to the respondent if an extension of time is granted, and any relevant public interest considerations (Hunter Valley Development Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348-349 per Wilcox J; Jackamarra v Krakouer and Another [1998] HCA 27; (1998) 195 CLR 516 at 521-522 per Brennan CJ and McHugh J; Kirby J at 542-543).
4 On 16 May 2018, I made an order to the effect that the application for an extension of time and the appeal (if an extension of time was granted), be heard together.
5 The first respondent opposes the application for an extension of time on the basis that the proposed appeal lacks sufficient merit to warrant an extension of time being granted.
6 The applicant claims to be a Tamil from the Eastern Province in Sri Lanka. He claims that his uncle was a commander in the Liberation Tigers of Tamil Eelam (LTTE) and that he holds a fear that he has been imputed with an LTTE profile and will be harmed by the Sri Lankan authorities should he return to Sri Lanka. He also claims to fear harm due to his prolonged absence from Sri Lanka and his status as a failed asylum seeker.
7 There is one ground of appeal in the proposed Notice of Appeal. It is as follows:
1. The IAA made a decision that is so illogical that no reasonable decision maker would have made it.
Particulars
In determining, at paragraphs [16]-[18] of the decision, that the claim the Applicant's uncle was a senior LTTE commander still at large and living and hiding in Sri Lanka in 2012 is "not plausible" based on findings drawn from a "range of sources" that "the LTTE was not in existence in 2012", the decision maker made a finding so illogical that no reasonable decision maker would have made it.
8 This ground of appeal was not a ground of the applicant's application for judicial review in the Federal Circuit Court. The applicant requires leave to raise it in those circumstances. I am disposed to think that leave should be refused on the basis that the proposed ground of appeal has insufficient prospects of success (Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 at [19] per Griffiths and Perry JJ). If leave is refused, then the application for an extension of time should be refused. I turn now to explain the reasons that I consider this ground to be without merit.
9 The applicant submits that the decision that it was not plausible that his uncle was a senior LTTE commander still at large and living and hiding in Sri Lanka in 2012 is illogical and irrational (see Minister for Immigration and Citizenship v SZMDS and Another [2010] HCA 16; (2010) 240 CLR 611).
10 The Authority made the following findings. The applicant was a Tamil from the Eastern Province in Sri Lanka who grew up during the civil war. The applicant and his family lived in a conflict zone and witnessed fighting and atrocities. The applicant and his family were displaced and the family home was burnt. The applicant's claim that during the war and when the applicant was a teenager, he was assaulted by army soldiers who warned him not to join the LTTE was plausible as was his claim that he was required to report regularly to the army. The applicant went to Dubai in 2005 to avoid possible recruitment by the LTTE.
11 The Authority did not accept the claim by the applicant that the LTTE attempted to forcibly recruit him. It found that the applicant made inconsistent claims in respect of that matter.
12 The Authority found that there were a number of inconsistencies in the applicant's account "in addition to the account of LTTE recruitment". The Authority said that whilst some of these inconsistencies were minor and not of concern in themselves, considered cumulatively they had the effect of casting doubt on the applicant's claims. The Authority identified five matters of this nature. It is relevant to identify the second matter, which was as follows:
The claim that the applicant gave a lift to his uncle and his uncle's friend in 2012 was not mentioned by the applicant in his Entry interview or his invalid 866 application. The applicant did not advance this claim until completing his SHEV application in 2015. While this may be considered detail, this incident is integral to the applicant's claim to have been of interest to the authorities and the fact that he did not mention it earlier raises significant concerns as to the veracity of this claim.
13 The Authority went on to consider the applicant's claim that his uncle was a senior LTTE commander still at large and living in Sri Lanka in 2012 because this was the basis upon which he said he feared he had been imputed with an LTTE profile and will be harmed by the Sri Lankan authorities should he return to that country. The Authority reached the conclusion that the applicant's account was so implausible that it should reject the applicant's claims regarding his uncle in their entirety. It said that it did not accept that the applicant had an uncle who was a senior LTTE commander and who had recently been killed, that because of this uncle he was assaulted by the army in 2003/2005, that this uncle was in hiding and that the applicant gave him a lift in 2012 and that subsequently the applicant was targeted by the authorities. It followed from that conclusion that the Authority did not accept that the applicant had been imputed with an LTTE profile by the authorities or that he was detained, questioned and tortured by the army or by the CID.
14 In my opinion, the Authority's reasoning which led to these conclusions were neither illogical nor irrational.
15 In reaching the conclusion that it was not plausible that the applicant's uncle was a senior LTTE commander still at large and living in hiding in Sri Lanka in 2012, the Authority relied on three matters. First, the Authority relied on the concerns it had about inconsistencies in the applicant's account. Secondly, the Authority relied on country information about the defeat of the LTTE and the fate of LTTE members after the war. Thirdly, the Authority asked itself whether the applicant's accounts of the uncle's movements was likely to be true if the uncle was a senior LTTE commander.
16 The applicant's submissions seem to proceed on the basis that the Authority had reached a conclusion of implausibility on the basis of the country information alone. That is plainly not the case when the structure of the Authority's reasons are properly appreciated. Paragraph 16 makes it clear that the inconsistencies are brought to account as well as the country information. The applicant seemed to submit that the country information could not establish that the applicant was not living in hiding. The applicant submitted that it was illogical and irrational to infer from the destruction of the LTTE as a fighting force in May 2009 that the applicant's uncle was not a former commander who was in hiding. The difficulty with this submission is that it misstates the Authority's process of reasoning. The Authority said at [18]:
Having regard to the reliable independent country information from a range of sources cited in the Immigration and Refugee Board of Canada report, and notwithstanding reports of small revival attempts, I am satisfied that the LTTE was not in existence in 2012 and that after the war most cadres were killed, fled the country or were detained and made to undergo rehabilitation. The former LTTE strongholds in the north and east of Sri Lanka were highly militarised after the war and a repressive security system was established with stringent monitoring of the Tamil population. Noting the security environment in the Eastern Province I am not convinced that an ex-LTTE commander would have been able to successfully hide from the authorities from the end of the war in 2009 until 2012.
(Emphasis added.)
With respect, that is an entirely legitimate process of reasoning.
17 As I have said, the Authority also considered whether it was plausible for a former commander of the LTTE to do the things the applicant said that he did and then took its conclusions into account. The Authority said at [20]:
I consider it implausible an LTTE commander living in hiding would visit extended family at their home occasionally, irrespective of his claim that the uncle visited at night to avoid detection. From the applicant's 886 application the local army camp was "about seven minutes by bicycle" from the family home and I do not accept that an LLTE commander would risk detection by visiting family members living in such close proximity to the army. I also find it implausible that the uncle would take such a risk to visit a nephew with whom, from the applicant's account, he has only a slight relationship. The applicant stated at his interview that they were not close and the two [sic] no contact while the applicant was in Dubai. The 886 application confirms the two had little contact and the only stated time of "hanging around" together was for a period in 2002.
18 The Authority did not reach its conclusions on the basis of the country information alone and the premise of the applicant's argument has not been established.
19 The application for an extension of time should be refused because the proposed appeal has no prospects of success.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.