BQS17 v Minister for Immigration and Citizenship [2025] FCA 1464

1. The applicant is a national of Sri Lanka, who arrived in Australia on 27 September 2012 as an "unauthorised maritime arrival" within the meaning of s 5AA of the Migration Act 1958 (Cth). On 27 January 2013 the applicant participated in an arrival interview in which his claimed reasons for leaving Sri Lanka were first recorded. On 19 February 2016, the applicant applied for a Safe Haven Enterprise visa (SHEV) and, on 17 May 2016, attended an interview with a delegate of the Minister for Immigration. On 6 September 2016, a delegate refused to grant the applicant a SHEV. The applicant was referred to the Immigration Assessment Authority and, on 12 September 2016, the Authority affirmed the delegate's decision. The applicant sought judicial review of the Authority's decision before the Federal Circuit and Family Court of Australia. The matter was listed for a directions hearing in the FCFCA on 3 August 2017 but the applicant did not appear, and the matter was adjourned for one week. The applicant failed to appear at the later directions hearing and the proceedings were dismissed. The applicant sought to have his case reinstated four years later but the application for reinstatement was dismissed in BQS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 13 (PJ or primary judgment) as the Court was not satisfied that there were reasonable prospects of success should the matter be reinstated. This matter was only docketed to me in November 2025.
2. An order dismissing an application to reinstate proceedings is interlocutory in nature and accordingly the applicant requires leave to appeal from the primary judgment, pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). In addition, an application to extend time to seek leave to appeal is necessary in this case. This is because any application for leave to appeal the decision below must be filed within 14 days after the order was made or the judgment delivered: r 35.13 of the Federal Court Rules 2011 (Cth). As the primary judgment was delivered on 21 October 2021, any application for leave to appeal was required to be filed on or before 4 November 2021. Instead, the application for extension of time and leave to appeal was filed on 17 November 2021, which was thirteen days outside the prescribed period.
3. The Court's attention focuses on the reasons of the primary judge and whether the applicant, by his proposed grounds of appeal, has demonstrated that there is sufficient doubt as to the correctness of the judgment below to warrant reconsideration. Further, the Court must consider whether substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at [2]- [3] per Sheppard, Burchett and Heerey JJ.
4. When considering whether to reinstate the application for judicial review, the primary judge was required, amongst other matters, to be satisfied that the application had reasonable prospects of success should the matter be reinstated. This application concerns whether time should be extended and the applicant should be granted leave to appeal an interlocutory decision refusing leave to reinstate his application. It involves primarily a consideration of the ostensible merit of the prospective appeal. For the reasons which follow, I am not persuaded that the prospective appeal has merit and leave ought be refused.

1. There are two relevant aspects of the Authority's reasons, for the purpose of the applicant's judicial review application before the primary judge and as agitated by application to this Court: First, the Authority's rejection of new information the applicant was seeking to rely upon: IAA[8]-[9]; Secondly, the Authority's rejection of the applicant's claim as to the motivation for certain of the devastating past harms which befell members of the applicant's family. The Authority accepted that the applicant's family members were tortured and killed but did not accept that harm arose from a targeted State response but rather as the consequence of the war. The Authority did not accept the applicant's claims of detention and torture. However, it did accept that he was subjected to harassment, caught up in roundups and discrimination but did not accept that this mistreatment was a result of the applicant being a Tamil or being a member of his family: IAA[15]-[27].
2. The applicant asked that the Authority consider the following new information which was not provided to the Minister before the Minister's delegate made his decision:

Lastly, I wish to provide the latest recent information that I received from my family members which I couldn't provide to the department during the interview. My brother in Paranthan had been recently suffering from severe heart burning sensation and was feeling faintish that he attended the Kilinochchi hospital. for treatment. While he was waiting for his turn CID officers entered the hospital and arrested my brother and two others and brought them to the police station for an inquiry. When they questioned my brother they asked him for the reason for his visit at the hospital, he said that he told the reason, the officers asked him whether he mentioned to anyone as to his detention and when my brother declined, the officers told them that their doctors would examine him and that he should not attend to the hospital. My brother had been suffering from pain but the CID officers never took him for medical check up. When he contacted them at the police station, the CID officers told him that they have all details about both my brother's and my detention and if he brought me along with him they could get their doctors to examine us. When my brother tried to leave the place, the CID officers told him that they were aware that I had fled from the country and awaiting my arrival back to Sri Lanka. My brother feared to discuss about his health issues with the CID officers and left the place as soon as he could. He advised me not to come back to Sri Lanka and to move out to any other country if I was refused with protection in Australia. I am afraid to return back to Sri Lanka as I am still searched by the CID as former LTTE member.

1. The Authority refused to consider that information for the following reasons:

8. The IAA submission in part raises new claims that he was unable to provide to the delegate. While his brother (who I surmise to be TJ) was seeking medical treatment at a hospital in Northern province, the brother and two other men were arrested by the Criminal Investigation Division ("CID") and taken for questioning. The officers told the brother to seek medical attention from their doctors, that they had the records of the applicant's previous detentions, were aware the applicant had gone overseas and were awaiting the applicant's return. The applicant's brother told him not to return to Sri Lanka as the CID remain searching for him as a former LTTE member ("the CID claim"). I consider the CID claim is new information. In the IAA submission the applicant does not explain why he was unable to provide the CID claim to the delegate or why the CID claim was not known at would affect consideration of the applicant's claims. He merely asserts he was unable to provide the CID claim. He does not explain when or how his brother contacted him about the CID claim. I am not satisfied there are exceptional circumstances which justify my considering the CID claim and I have not had regard to it.

1. In relation to past harm, the applicant made various claims of harm as against himself and members of his family. The applicant claimed that he was detained on various occasions by the Sri Lankan authorities because he is a Tamil and he is a member of his family. The Authority found that the applicant had provided materially inconsistent evidence regarding his claimed periods of detention (both when those periods occurred and the length of detention: IAA[22]). The Authority considered that these inconsistencies undermined the credibility of the applicant's claims that he was detained in the past. The Authority did not accept the applicant's claim that the Sri Lankan army had come to his home after shooting his brothers and threatened his wife. This was because his brothers had been killed in 1997 and 1999, and the applicant had not met and married his wife until 2007. The Authority erroneously suggested the time periods between the two events were 18 and 20 years respectively. The Authority also found that the timing of the applicant's claimed detention in 2006/2007/2008 was inconsistent with his travel to Qatar in March 2008.
2. Also, the Authority found that, in relation to the applicant's travel to Qatar, at his entry interview the applicant claimed to have gone to Qatar to work, lawfully, using a valid passport. The Authority found that this was inconsistent with his claims that he was of interest to the Sri Lankan authorities: IAA[28]. In his SHEV statement the applicant had claimed to have been illegally smuggled to Qatar: IAA[25]. The Authority considered that the applicant's inconsistent evidence regarding how he went to Qatar further undermined his credibility: IAA[25].
3. While the Authority accepted that the applicant had provided generally consistent claims regarding the deaths of his brothers and parents (IAA[26]), the Authority did not accept that the deaths resulted from specific targeting:

However, his evidence surrounding their deaths and rehabilitation is inconsistent with the applicant's claims his family were targeted by the Sri Lankan authorities. Rather, that evidence indicates his family have befallen a number of tragedies during and in the aftermath of the Sri Lankan civil and were not specifically targeted by the Sri Lankan authorities. His parents and brother TS were random, innocent victims of shelling/air strikes. His brothers TT and TI were innocent victims caught up in firefights. His brother TJ too was detained in a round-up, not specifically targeted. The applicant's evidence is neither he nor any member of his family were members of the LTTE. That evidence too undermines his claim his family were targeted for harm by the Sri Lankan authorities. I am willing to accept TJ has ongoing reporting requirements to the Sri Lankan authorities after his rehabilitation, but I consider the applicant has exaggerated that means his family remains under target from the Sri Lankan authorities.

1. The Authority did not accept that the Sri Lankan army came looking for the applicant after the shooting deaths of his brothers in 1997 or 1999, or that he was arrested and tortured as the applicant claimed, as reasoned at IAA[29] which is extracted as follows:

I do not accept the army came looking for the applicant after the shooting deaths of brothers TT or TI in 1997 or 1999. I do not accept the applicant was arrested and tortured in 1998. I do not accept the applicant was jailed for two years in 2000. I do not accept the applicant was arrested in January 2000, charged with assisting the LTTE and released in April 2001 after his wife paid a ransom. I don't accept the applicant was jailed in April-May 2000 or March-April 2001. I do not accept the applicant was detained for 3 months in 2005. I do not accept the applicant was detained for ten days in 2006. I do not accept the applicant was detained for 2 weeks in November or in November-December 2007. I do not accept the applicant went into hiding in 2007 to avoid detention. I do not accept the applicant was detained a month before he went to Qatar. I do not accept the applicant went to Qatar to avoid the Karuna group, the army or the STF (HTF) or the CID, or the police. I do not accept the applicant returned to Sri Lanka because he witnessed Tamils being persecuted in Qatar. I do not accept the applicant was detained in March 2011. I do not accept the applicant was arrested for 2 weeks in June 2011. I do not accept the applicant's wife ever paid a ransom or bail to release the applicant. I do not accept the applicant lived in hiding until he left Sri Lanka in September 2012. I do not accept the CID, police, army, STF (or HTF) or the Karuna group ever looked for the applicant or threatened the applicant, his wife or his sister. I do not accept the Karuna group took the applicant's brother-in-law. I do not accept the applicant's brother-in-law has spoken to the Sri Lankan authorities about the applicant's whereabouts. I consider the applicant has fabricated these claims in their entirety as a basis upon which to apply for protection.

1. Ultimately, the Authority did accept that the applicant had lived in LTTE controlled areas and experienced harassment during and in the aftermath of the Sri Lankan civil war. However, the Authority rejected the applicant's other claims of past harm and that any scarring of the applicant's body was a result of torture during periods of detention and found that the applicant had exaggerated the threat to him because of him being a Tamil: IAA[32]. The Authority thereafter found, based on country information, that the situation in Sri Lanka had improved and despite the applicant having scars, it was not satisfied that the applicant had a profile that would bring him to the attention of the Sri Lankan authorities as someone connected to the LTTE based on country information: IAA[34].
2. This summary does not constitute a complete account of the Authority's reasons but rather gives focus to those aspects that bear relevance to the application now before this Court.
3. Ultimately, the Authority found that it was not satisfied the applicant had a well-founded fear of persecution from any of the claimed persecutors, for the s 5J(1)(a) reasons he claimed or that he met the criterion in s 36(2)(a) of the Act: IAA[49]-[50]. The Authority also found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, there was a real risk that the applicant would suffer significant harm and did not meet s 36(2)(aa) of the Act.

1. By application filed on 19 April 2017, the applicant sought judicial review of the Authority's decision. At the time of filing, the matter was listed for a first Court date on 3 August 2017. The applicant failed to attend the first Court date directions hearing and the Registrar adjourned the directions hearing until 10 August 2017. On 10 August 2017, the applicant also failed to attend. The Registrar dismissed the substantive application, pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (which applied at that time).
2. Some four years later, on 30 August 2021, the applicant filed an application in a case to reinstate the substantive application, which was heard by the primary judge on 8 December 2021. On 25 February 2022, the primary judge made orders dismissing the application for reinstatement.
3. The primary judge gave consideration to the three following factors, identified in CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4], when considering whether to exercise the discretion to reinstate an application:

(a) whether the applicant has provided a reasonable excuse for their absence from the hearing at which the proceeding was dismissed by reason of their non-attendance, together with a reasonable excuse for any delay in seeking reinstatement (if relevant);

(b) there would be any prejudice to the other party if reinstatement were to be granted; and

(c) whether there exists a reasonably arguable prospect of success of the grounds of the substantive application, with that assessment to be taken at a reasonably impressionistic level: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [62] per Mortimer J and DHX17 v Minister fir Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127; 278 FCR 475.

1. In relation to the first factor (whether there was a reasonable excuse for the absence), the primary judge referred to the applicant's explanation for his non-attendance at the first Court date on 3 August 2017 was based on medical issues namely that he suffered a seizure on 2 August 2017 and accepted that the applicant had an alcohol induced seizure that lead to his hospitalisation. The primary judge accepted that the applicant was aware that the first Court date had been adjourned for one week, given that the respondent sent two emails to the applicant's Gmail address in respect of the first and second non-attendance, and of the consequences of non-attendance. The primary judge was not persuaded that the applicant's four-year delay in applying for reinstatement was explained by his claim to have received no correspondence. The primary judge concluded that the lack of satisfactory explanation for the applicant's failure to attend the hearing and the delay in seeking reinstatement weighed against the exercise of the discretion to reinstate the proceedings.
2. In relation to the second factor, the primary judge found that the question of prejudice to the Minister was neutral to the question of whether to exercise the discretion to reinstate.
3. In relation to the third factor, being the prospects of success of the substantive application, the primary judge considered the merits of the proposed amended application, which was annexed to the applicant's affidavit lodged 30 August 2021. The proposed review grounds were as follows (omitting particulars):

1. The IAA erred when it concluded "it was evident the applicant have [sic] provided inconsistent evidence regarding his claimed periods of detention."

2. The IAA erred when it concluded "Neither of these descriptions is consistent with his earlier claims TI and TT were shot"

3. The IAA erred when it was not satisfied there are exceptional circumstances which justify considering the CID claim.

4. In the alternative to 3, the IAA erred when it was not satisfied there are exceptional circumstances which justify considering the CID claim.

1. In relation to proposed ground one, the primary judge found that the Authority's findings at IAA[22] were open to it. The Authority accepted that there were consistent periods of detention, namely the period before the applicant went to Qatar and prior to coming to Australia. It went on to say "[h]owever, there have been material differences too as to the dates and lengths of the detention..." Rather than suggesting that the periods were inconsistent, the Authority was suggesting that the applicant's accounts were inconsistent, and that description was certainly open to it. The primary judge was not satisfied that there was a reasonably arguable error of fact, nor that the jurisdictional error was one of illogicality or irrationality
2. In relation to proposed ground two, the primary judge was of the view that the applicant's challenges took aspects of the Authority's findings out of context. At its core, the primary judge found the discrepancy was not about the specific manner in which TI and TT were killed, but rather the question of whether their respective killings were targeted rather than the result of being caught in crossfire as non-combatants. The applicant's proposed ground two sought to construe the relevant findings of the Authority as being directed to whether being shot was inconsistent with being tortured and to minutiae such as whether a head injury of TT was consistent with being shot. The primary judge considered that the Authority's findings (at IAA[21] and IAA[26]) were open to it on the material before it, such that there is no reasonably arguable ground even at an impressionistic level as advanced by proposed ground two which would warrant reinstatement.
3. The primary judge considered proposed grounds three and four together. The primary judge found that the Authority at IAA[8] did not specifically apply the High Court's approach in AUS17 Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494 by expressly and separately addressing each of the limbs of s 473DD(b). However, the Authority gave consideration to s 473DD(b)(ii), which is reflected in its consideration of whether the CID claim "would have affected consideration of the referred applicant's claims". While this did not fully reflect the language of the subsection insofar as it does not expressly set out a consideration of whether the CID claim was "credible personal information", the primary judge found that the reasons of the Authority did engage in substance with s 473DD(b)(ii). Even if the applicant were able to establish a jurisdictional error constituted by the Authority's failure to properly apply s 473DD(b), the primary judge found that it was not material insofar as it could not have realistically resulted in a successful outcome before the Authority, having regard to the entirety of the findings and reasons and the context of the new information within them.
4. Ultimately, the primary judge was satisfied that the interests of the administration of justice did not warrant that the orders made by Registrar Morgan on 10 August 2017 should be set aside.

The present application for leave to appeal and for an extension of time

1. By an application dated 10 March 2022, the applicant seeks leave to appeal from the primary judgment. In his application, the applicant purports to advance two grounds: First, that he appeals from the whole of the judgment of the FCFCA, and secondly, to "refer to the form 121 for further details" as well as the applicant's four review grounds below (with lengthy particulars), as contained in the applicant's affidavit lodged on 30 August 2021. The grounds of review below (with particulars omitted) were:

1. The IAA erred when it concluded "it was evident the applicant have [sic] provided inconsistent evidence regarding his claimed periods of detention."

2. The IAA erred when it concluded "Neither of these descriptions is consistent with his earlier claims TI and TT were shot"

3. The IAA erred when it was not satisfied there are exceptional circumstances which justify considering the CID claim.

4. In the alternative to 3, the IAA erred when it was not satisfied there are exceptional circumstances which justify considering the CID claim.

1. The applicant also relied on a draft notice of appeal, which he provided to this Court on 10 March 2022. The draft notice of appeal advanced one particularised ground of review in the following terms:

Grounds of appeal

The Federal Circuit and Family Court of Australia 'the lower Court' erred when it dismissed the Appellant's reinstatement application.

Particulars:

i. [97]

ii. In coming to the above finding, the lower Court erred when it was not satisfied that proposed amended ground 1 enjoys sufficient merit even at an impressionistic level such that reinstatement would be warranted so that it could be argued and determined at a final hearing [74];

iii. In coming to the above finding, the lower Court erred when it found there is no reasonably arguable ground even at an impressionistic level as advanced by proposed ground 2 which would warrant reinstatement [85];

iv. In coming to the above finding, the lower Court erred when it found the Authority gave consideration to S 473DD(b )(ii) and the reasons did engage in substance with S 473DD(b)(ii) in respect of proposed grounds 3 and 4 [91];

v. In coming to the above finding, the lower Court erred when it found that, even if the applicant were able to establish a jurisdictional error constituted by the Authority's failure to properly apply S 473DD(b), it was not material insofar as it could have realistically resulted in a successful outcome before the Authority [94];

vi. In coming to the above finding, the lower Court erred when it considered that if the Appellant's seizure was alcohol related and could be considered to be self induced was a relevant consideration [41], [43];

vii. In coming to the above finding, the lower Court erred when it was not persuaded that the explanation for failing to attend on 10 August 2017, nor the delay in seeking reinstatement, is sufficiently persuasive as to warrant the exercise of discretion in favour of the Applicant to reinstate. [56].

The applicant's submission in support of his application

1. The applicant did not file any submissions in support of his application and made only a very brief oral submission presumably in response to the Authority's rejection of his claims of past harm and the need for future protection. The applicant submitted that he accepted that there were inconsistences in his evidence, but this had arisen by virtue of his mental status, namely depression.

1. In order for the applicant's application to succeed he needs to demonstrate, with focus on the prospects of the proposed appeal, whether there is sufficient doubt as to the correctness of the judgment below to warrant reconsideration, and secondly, whether substantial injustice would result if leave were refused: The two issues are interrelated.
2. The proposed appeal, whilst particularised in seven ways, contended (a) the primary judge erred when finding that the applicant's judicial review grounds one and two lacked merit. These grounds were concerned with the Authority's rejection of the applicant's past harm claims (particulars i, ii, and iii of the proposed grounds of appeal); (b) the primary judge when finding the applicant's judicial review grounds three and four lacked merit. These grounds concerned the Authority's rejection of the applicant's new information (particulars iv and v); and (c) the primary judge erred by not being persuaded that there was an adequate explanation for the applicant's failure to attend the 10 August 2017 hearing or the delay in bringing the reinstatement application (particulars vi and vii).

Whether the primary judge erred in determining that judicial review grounds one and two were without merit (the past harm claims)

1. By particulars (ii) and (iii), the applicant does no more than state baldly that the primary judge erred but without identifying how the primary judge erred in finding that proposed grounds one and two did not have sufficient merit nor how this led to the Court below to err in exercising its discretion not to reinstate the application.
2. The primary judge identified what principles inform the Court's exercise of its discretion, at PJ[32] and thereafter applied those principles.
3. The primary judge found that proposed judicial review ground one, which sought to impugn the Authority's findings (at IAA[22]) did not enjoy sufficient merit, even at an impressionistic level: PJ[64]-[70]. The primary judge extracted the impugned paragraph from the Authority's reasons (IAA[22]) and analysed its reasoning before coming to the conclusion that the Authority's findings were open to it on the material before it. The applicant had claimed, in the particulars to this review ground, that "the IAA was incorrect in its finding at [22] ...because the various events set out in paragraphs [17]-[21] are not 'inconsistent' nor 'material differences' as suggested by the IAA, but merely different events presented in a piecemeal fashion which all occurred over the relevant period but which were not shown to be wrong or otherwise inconsistent".
4. As will be apparent from above reasoning, the Authority, in coming to the conclusions it reached in IAA[22], had considered the applicant's claims, as revealed in his entry interview, the SHEV application forms, his SHEV statement and SHEV interview as well as a statutory declaration the applicant had provided after the SHEV interview: IAA[17]-[21]. This Court did not have a copy of the SHEV interview transcript before it. The Authority's conclusion as to the inconsistencies giving rise to the applicant's claimed periods of detention, and whether he was detained by the army, police or Sri Lanka Special Task Force arose from multiple sources. It is apparent that the Authority was concerned as to the discrepancies between the dates and lengths of detention, and the relevant arresting authority. As the primary judge found, such findings were open for the Authority to make. A careful review of the entry interview information, the SHEV application form, the applicant's SHEV statement, the SHEV interview (to the extent that the relevant parts of its content are summarised by the Authority at IAA[20]), and the post-interview statutory declaration reveal that the applicant described the time, period(s) of detention and arresting authority differently on each occasion. Accordingly, it was open for the Authority to come to the conclusions it did in IAA[22]. The applicant did not articulate below, nor before me, the alleged form of jurisdictional error. I can discern no legal unreasonableness, illogicality nor irrationality in those findings.
5. As to the second ground of judicial review before the primary judge, the applicant claimed that the Authority erred when it concluded, at IAA[21], as to discrepancies in the description of the events leading to the deaths of two of the applicant's brothers, TI and TT, and stating "[n]either of these descriptions is consistent with his earlier claims TI and TT were shot". The applicant submitted that his claims were not in fact inconsistent with them being shot and the Authority's conclusions were "incorrect and unreasonable" and material findings.
6. Paragraph IAA[21] is extracted as follows:

In a statutory declaration the applicant provided after the SHEV interview in response to questions the delegate put to him under s.56 ("the post-interview statement"), the applicant claimed the body of TI was found bound and with evidence of being torture prior to his death from a head wound. The body of his brother TT was found limbless. Neither of these descriptions is consistent with his earlier claims TI and TT were shot. However, the post interview statement claims are consistent TT and TI were killed, along with many other Tamil victims when there was fighting between the Sri Lankan army and the LTTE and that neither TI nor TT were combatants. In the post-interview statement, the applicant claims too that he was arrested by the STF in January 2000 and charged with being a LTTE supporter. He was moved between various jails, detention centres and camps while the case against him proceeded through the courts. He was released in April 2001 after his wife paid a ransom, but had to report weekly to a police station until January 2006, where after he had to report to the police station monthly. He further claims both the Karuna group and Pillayan group were active in his home area and he fears both groups may harm him.

1. The primary judge traversed the various representations made by the applicant as to the circumstances leading to the tragic demise of the applicant's brothers: IAA[77]-[80]. In particular, the primary judge referred to a letter from the Minister's Department seeking further information from the applicant after the SHEV interview, and to the fact that, during the interview, the applicant had stated that his brothers were "killed as non-combatants in an area where a battle was taking place" and when asked whether they were executed by authorities, he had replied in the negative: IAA[77(b)].
2. The primary judge reasoned that proposed ground two misconstrued the Authority's findings (at IAA[21]), namely that being shot was inconsistent with being tortured when, of course, both could have occurred. The primary judge found that upon a fair reading of the Authority's reasons (consistent with the correspondence from the delegate and the Authority's ultimate conclusion) the relevant discrepancy concerned whether the applicant's relatives' deaths were targeted killings or not, rather than the specific manner of the killings. As a consequence, the claim that the findings were unreasonable or incorrect did not have reasonable prospects. The primary judge found the Authority's findings were open on the material and the applicant had not identified how the error (even if accepted) was material and therefore jurisdictional.
3. I can discern no error in the reasoning of the primary judge. I am of the view that the primary judge was correct to conclude that the finding as to the inconsistency was directed to whether the deaths were State-sanctioned killings rather than, as the Authority ultimately found, that they were casualties of the civil war but not as a result of any specific targeting. This is apparent not only from the reasoning at IAA[21] but also from the information that was before the Authority and particularly the material which the primary judge referred to at PJ[77(b)]. Indeed the Authority made reference to that material, a bit later in its reasoning at IAA[26]:

The applicant did provide generally consistent claims regarding the deaths of his brothers TT, TI and TS and of his parents and the detention and rehabilitation of his brother TJ. The applicant's evidence at the SHEV interview was his brothers TT and TI were both killed as noncombatants and neither were members of the LTTE. TJ was arrested in a round-up at the end of the Sri Lankan civil war in 2009 on suspicion of connection to the LTTE. TJ requires to report monthly to Colombo. At the SHEV interview he made new claims the husband and son of his eldest sister were shot in 2009. He did not explain clearly by whom they were shot or if they survived.

1. Further, this conclusion, as to how to understand the Authority's reasoning at IAA[21] is confirmed by the Authority's further reasoning at IAA[27]:

I am willing to accept the applicant lived in a LTTE area, near a STF camp and was harassed by the Sri Lankan authorities and caught in round-ups in during and immediately after the Sri Lankan civil war. I am willing to accept the applicant's parents and brother TS died from shelling and his brothers TT and TI were killed (either shot, beaten or in shelling) by the army during the Sri Lankan civil war. I am willing to accept too that his brother TJ was detained and rehabilitated after the end of the Sri Lankan civil war in 2009. The applicant's claims of harm to his parents and brothers TS, TT, TS and TJ is generally consistent with the country information quoted by the delegate (particularly regarding he detention and rehabilitation of TJ) and in the DFAT country report and thematic report 2 in the review material and in the new DFAT report regarding the situation for Tamils in Northern and Eastern province during and in the aftermath of the Sri Lankan civil war. However, his evidence surrounding their deaths and rehabilitation is inconsistent with the applicant's claims his family were targeted by the Sri Lankan authorities. Rather, that evidence indicates his family have befallen a number of tragedies during and in the aftermath of the Sri Lankan civil and were not specifically targeted by the Sri Lankan authorities. His parents and brother TS were random, innocent victims of shelling/air strikes. His brothers TT and TI were innocent victims caught up in firefights. His brother TJ too was detained in a round-up, not specifically targeted. The applicant's evidence is neither he nor any member of his family were members of the LTTE. That evidence too undermines his claim his family were targeted for harm by the Sri Lankan authorities. I am willing to accept TJ has ongoing reporting requirements to the Sri Lankan authorities after his rehabilitation, but I consider the applicant has exaggerated that means his family remains under target from the Sri Lankan authorities.

(my emphasis)

1. Further, particular (i) makes no allegation save for referring to PJ[97] which is the final paragraph of the judgment concluding that the application be dismissed.
2. For these reasons, I can discern no merit in particulars (i)-(iii) of the applicant's proposed grounds of appeal.

Whether the primary judge erred in her assessment of the merit of the applicant's new information claims

1. By particulars (iv) and (v) to the proposed grounds of appeal, the applicant appears to be reasserting review grounds three and four below, regarding the Authority's findings about new information under s 473DD of the Act. As referred to above, at [6]-[7], the applicant sought to rely on new information before the Authority.
2. Section 473DD of the Act, as it then was, impeded the capacity for the Authority to take into account new information which was not before the Minister. Section 473DD provided:

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.

1. The High Court in AUS17 authoritatively stated how the Authority was to assess new information in accordance with s 473DD according to the following path:

11. Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.

1. Accordingly, contrary to the natural order of s 473DD, the Authority was required to be satisfied of either (b)(i) or (ii) before the Authority could consider whether (a) was satisfied.
2. The applicant claimed below that the Authority had erred by not being satisfied that (a) the Authority had neglected to consider the (b)(ii) limb of s 473DD (review ground three below) and (b) had erred by not being satisfied that there were exceptional circumstances to justify considering the new information (review ground four below).
3. It is worthwhile extracting the relevant portion of the Authority's reasoning at [8] again:

The IAA submission in part raises new claims that he was unable to provide to the delegate. While his brother (who I surmise to be TJ) was seeking medical treatment at a hospital in Northern province, the brother and two other men were arrested by the Criminal Investigation Division ("CID") and taken for questioning. The officers told the brother to seek medical attention from their doctors, that they had the records of the applicant's previous detentions, were aware the applicant had gone overseas and were awaiting the applicant's return. The applicant's brother told him not to return to Sri Lanka as the CID remain searching for him as a former LTTE member ("the CID claim"). I consider the CID claim is new information. In the IAA submission the applicant does not explain why he was unable to provide the CID claim to the delegate or why the CID claim was not known at would affect consideration of the applicant's claims. He merely asserts he was unable to provide the CID claim. He does not explain when or how his brother contacted him about the CID claim. I am not satisfied there are exceptional circumstances which justify my considering the CID claim and I have not had regard to it.

1. The primary judge noted, at PJ[91], that the Minister had "properly concede[d]" that the Authority's finding at [8] was not "strictly compliant" with the approach in AUS17 but found:

However, in my view, the Authority did give consideration to s 473DD(b)(ii), which is reflected in its consideration of whether the CID claim "would have affected consideration of the referred applicant's claims". While this did not fully reflect the language of the subsection insofar as it does not expressly set out a consideration of whether the CID claim was "credible personal information", in my view the reasons of the Authority did engage in substance with s 473DD(b)(ii).

1. The primary judge went on to find that, even if she was wrong and the Authority's reasoning at [8] could give rise to a jurisdictional error, her Honour agreed with the submission of the Minister that it was not material as it could not have realistically resulted in a successful outcome before the Authority: PJ[94].
2. It is worthwhile noting that the Authority commences the paragraph by noting the new claims which the applicant was "unable to provide the delegate" and in the sixth sentence that in the applicant's Authority submission he "does not explain why he was unable to provide the CID claim to the delegate". By the former, it appears that the Authority implicitly accepted that the information was not provided to the delegate and, as to the latter, it appears that the Authority contemplated whether the applicant could have provided the information to the Authority and that it could not conclude that the applicant could not have provided the information to the Authority. Accordingly, it appears open, as the primary judge found, that the Authority considered what it was required to consider under s 473DD(b)(i).
3. Returning to the sixth sentence again the Authority states: "the applicant does not explain... or why the CID claim was not known at would affect consideration of the applicant's claims" (my emphasis). The use of the conjunction "or" mirrors the statutory provision and appears to adopt part of the elements of s 473DD(b)(ii). This sentence contains typographical errors. However, the sentence appears to convey that the Authority was of the view that the applicant did not explain why the CID claim was not known at the time of the delegate's decision, nor how it would affect consideration of the applicant's claims. The Authority continues: "He does not explain when or how his brother contacted him about the CID claim". The Authority's reasoning questions the timing of the provision of the information, how this information would affect the nature and strength of the applicant's other claims (or impact the Authority's task), and the provenance of the information. This reasoning contemplates a consideration of whether the information is "credible personal information" which in broad terms "is information or an opinion about an identified individual, or an individual who is reasonably identifiable": AUS17 [24]. The Authority did not expressly advert to whether the information was "personal information", however the Authority recounted the information at [8], which plainly includes a claim that the CID had records relating to the applicant and were awaiting his return. It appears implicit in this recounting that the Authority adverted to whether the information was personal information. In any event, it is clear the Authority did not think the information was credible, demonstrated by the Authority finding that it was unclear why the applicant could not provide the information to the delegate, why the information was not known earlier, how the information would affect consideration of the applicant's claims, and when or how the applicant's brother contacted him about this information.
4. Given that the Authority was satisfied that the applicant had not made out either potential gateway basis under s 473DD(b), there was no need, indeed the Authority was prohibited from going on, to consider whether exceptional circumstances existed under s 473DD(a). Accordingly, to the extent that there was a claim below that the Authority erred in not being satisfied that exceptional circumstances existed, the Authority was precluded from doing so unless satisfied under s 473DD(b).
5. Accordingly, I can discern no error in the primary judge's characterisation of these grounds as being without merit.

Whether the primary judge erred in not being satisfied as to the applicant's explanation for non-attendance and regarding delay

1. By particulars (vi) and (vii) of the applicant's proposed grounds of appeal, the applicant takes issue with certain of the primary judge's conclusions (relevant as to whether the Court in its discretion ought to reinstate the proceedings) relating to his explanation for his not attendance at the hearing on 10 August 2017 and the delay of four years in applying for reinstatement. As the primary judge adverted to at PJ[32], factors relevant to the Court's exercise of its discretionary power to reinstate such an application include whether the applicant has provided a reasonable excuse for their absence from the hearing at which the proceeding was dismissed together with any reasonable excuse for the delay: CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [4].
2. As to particular (vi), the applicant alleges that the primary judge erred when it considered that the applicant's seizure was alcohol-related and could be considered to be self-induced, and that this was a relevant consideration (PJ[41], [43]). That evidence was directed to the applicant's non-attendance at the First Court date on 3 August 2017. The matter was relisted on 10 August 2017. The applicant did not appear on either occasion. To the extent that the primary judge referred to the applicant's medical condition, this related to the first instance of non-attendance, namely on 3 August 2017, not when the proceeding was dismissed on 10 August 2017. The primary judge acknowledged this at PJ[45] where her Honour stated:

The non-attendance on 3 August 2017 is not strictly the explanation with which the Court is concerned for the purposes of the reinstatement application, except to the extent that it might dovetail into the non-attendance on 10 August 2017. The relevant consideration is the explanation for the non-attendance which led to the dismissal and in the instant case, that was the failure to attend on 10 August 2017, being the occasion at which the proceedings were ultimately dismissed.

1. The primary judge went on to consider the applicant's explanation for not attending on 10 August 2017: PJ[46]-[54]. For a variety of reasons, the primary judge did not accept that the applicant was not aware of the hearing on that date and chose not to attend. I can discern no error in the primary judge's findings regarding the applicant's non-attendance.
2. In relation to particular (vii), whereby the applicant contends again that the primary judge erred by not being persuaded as to the explanation given for the non-attendance on 10 August 2017 nor the delay, no error has been identified save for disagreement with the conclusion.
3. Accordingly, I can discern no error arising from particulars (vi) nor (vii) of the applicant's proposed grounds of appeal.

1. For these reasons, the application must be dismissed with costs.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Raper.