BTL18 v Minister for Immigration and Citizenship [2025] FCA 1463

1. The applicant is a Sri Lankan national of Tamil ethnicity, who arrived in Australia at the Cocos (Keeling) Islands on 26 August 2012 as an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act 1958 (Cth). On 8 August 2016, the applicant lodged an application for a Safe Haven Enterprise Visa and was interviewed in relation to that application on 23 August 2017. On 16 November 2017, a delegate of the first respondent refused the application, and the matter was referred to the Immigration Assessment Authority for review under Part 7AA of the Act. On 14 March 2018, the Authority affirmed the delegate's decision. On 9 April 2018, the applicant lodged an application for judicial review in the former Federal Circuit Court of Australia. On 14 November 2019, the FCCA dismissed the applicant's application: BTL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2019] FCCA 3282 (primary judgment or J).
2. The applicant seeks (as he is required to) an extension of time to appeal against the whole of the primary judgment. This is because any notice of appeal against a decision of the FCCA must be filed within 28 days after the date on which the judgment appealed from was pronounced or the order was made: r 36.03 of the Federal Court Rules 2011 (Cth). The primary judge delivered ex-tempore reasons for judgment on 14 November 2019 and, therefore, any appeal must have been filed by 12 December 2019. The application was not filed until 29 August 2021, some 626 days out of time. It was the applicant's evidence that he did not apply earlier for leave to appeal because he was unrepresented and did not know he could until a friend had told him. The Minister submits that the application for leave to extend time ought be refused with costs, given the length of the delay, the absence of explanation (as to the inordinate delay) and the absence of merit in the proposed appeal. I note additionally that the applicant seeks leave to rely on a new ground which was not before the primary judge.
3. The decision to grant an extension of time to appeal is a discretionary one for which the applicant bears the onus. Factors typically taken into account when considering whether an extension of time should be granted include the length of the delay, the explanation for the delay, any prejudice a respondent might suffer because of the delay, and the merits of the proposed application: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; 276 CLR 579 at [12].
4. For the reasons set out below, it is my view that leave to extend time to appeal and to rely upon a fresh ground should be refused given the applicant has been unable to establish that the prospective appeal has at least ostensible merit.

Why the applicant ought be refused leave to extend time and to rely upon fresh grounds on appeal

1. The applicant sought to support his application for an extension of time for leave to appeal by way of an amended draft notice of appeal dated 28 September 2025, which contained one new ground of appeal that was not argued in the Court below:

The IAA erred when it was not satisfied at [23] "the applicant has, or will be, imputed with any connection with the LTTE [Liberation Tigers of Tamil Eelam] as a result of his family links" and when it found the applicant does not meet the requirements of the definition of refugee in S 5H ( 1) of the Migration Act and does not meet S 36 (2)(a), or meet S 36(2)(aa) (of the Migration Act].

1. The ground contains three lengthy particulars, which are reproduced below:
   1. Paragraph 23 [AB 174]; paragraph 38 [AB 177]; paragraph 43 [AB 178];
   2. The IAA relied upon various findings adverse to the Appellant, which findings were as a result of misunderstanding. misinterpretation or selectivity of the material before it, such that the ultimate findings were unreasonable irrational or illogical resulting in jurisdictional error.

Particulars of adverse findings

1. The discrepancy between the years '2007 to 2008' on the one hand, and the years '2008 to 2009' [AB 172]. The Appellant was aged between 15 and 17 years in 2007-2009. and so his recollection when giving the SHEV interview in August 2017 [AB143] (age 25) was of events 8-10 years before;

2. The Appellant was unable to provide information about where the weapons were coming from' and 'provided only the barest of information' [ABI 72). The Appellant claimed he was only 'helping· the uncles and simply may not have known further details, being aged between I 5 and 17 years (2007-2009);

3. The IAA noted the Appellant stated in his first statement that his uncle was required to report to the TID office in Colombo on a monthly basis and at the SHEV interview every two or three months [ABI 72]. The IAA failed to mention the claim of reporting monthly was also mentioned specifically in the Appellant's second statement [ AB 126], yet the IAA made the decision to accept the claim of reporting 'every two or three months' [AB 173], supporting the finding that the IAA found reporting 'every two or three months' was entirely implausible' [ABI 73], in spite of the 2 references to monthly reporting;

4. The IAA considered that 'if H had been suspected of providing non-military support to the LITE it is likely he would have been sent to a rehabilitation centre', relying on a DFAT 2017 report. [AB172]. However, the finding implicitly accepts by use of the word 'likely' that not all persons assisting the LTTE would have been sent to rehabilitation centres. This finding was then used to support a further finding that H was not a person of interest to authorities after H's release;

5. The IAA noted the Appellant did not refer to his Uncle A providing assistance to the LTTE until his second statement in 2016, and he did not claim Uncle H assisted the LTTE until the SHEV interview [ABI 73]. While these points are correct, the IAA did not refer to the Appellant stating in the second statement his 'wish to provide some further background about his family' [AB126]. The information in the second statement is graphic in nature. although only extending to one page. The lAA discounted the details there given as mere 'embellishment' [AB 173] without considering whether the second statement was an attempt to provide further information, such that the IAA was content to diminish the status of the newer information merely because it was given later than the information contained in the first statement;

6. The IAA misunderstood information contained in the first statement: At [AB 173] the IAA stated 'I take into account .... his first statement made in 2013 in which he said Uncle H had no connections or involvement with the LTTE, . .'. A careful reading of the first statement made in 2013 shows the Appellant did not assert his uncle H 'had no connections or involvement with the LTTE', but rather that 'My uncle maintains he had no connections or involvement with the LTTE', no doubt referencing his uncle's position vis a vis towards the TID allegations. It is clear the Appellant was not saying the Uncle had no involvement from the Appellant's own observations, something he made plain in the second statement.

7. The IAA, in analysing relevant details as set out above, came to unreasonable findings, displayed a failure to properly consider the material and apply intellectual engagement, or gave too much weight to matters of little consequence. Thereby committing jurisdictional error.

1. As with an application for leave to extend time, a person may only appeal a decision on fresh grounds with leave where the Court considers that it is expedient in the interests of justice to entertain the issue: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]. Whilst the merit of a proposed new ground is relevant, it is well settled that merit alone is generally not enough for the grant of leave: VUAX at [48]. As Bromwich J observed in Han v Minister for Home Affairs [2019] FCA 331 at [15], the weaker the merit of the point sought to be raised, the greater the need for other aspects to be favourable, such as the explanation for not taking it below and prejudice to the opposing party.
2. The applicant's first ground for judicial review before the primary judge was that the Authority did not consider the changing situation in Sri Lanka, thereby, misapplying "the well-founded fear test", and the second was that the Authority failed to find that the applicant satisfied a Convention reason, namely imputed political opinion because of his association with the LTTE or perceived association with the LTTE. There is arguably some overlap between the second review ground and the new ground on appeal. However, I am not satisfied that leave should be granted in any event by reason of the paucity of merit.
3. Given the prospective appeal concerns a new ground, there is no need for the Court to consider the primary judge's reasons for dismissing the applicant's application for judicial review.
4. The applicant's claim is predicated on the basis that the Authority's decision was vitiated by jurisdictional error on the basis that its conclusion at IAA[23], which was said to form the conclusion that the applicant did not meet the requirements of the definition of "refugee" in s 5H(1) and therefore s 36(2)(a) nor s 36(2)(aa) of the Act, was legally unreasonable, irrational or illogical, by reason of six alleged factual findings. The impugned conclusion at IAA[23] is set out as follows:

The applicant also claims to fear harm on the basis of his Tamil ethnicity, including being imputed with links to the LTTE because of that ethnicity. I am not satisfied the applicant has, or will be, imputed with any connection with the LTTE as a result of his family links.

1. The six impugned findings said to form the basis for the conclusion at IAA[23] were:

(a) as to alleged discrepancy, identified at IAA[17], in accounts by the applicant, as to when he worked with his uncles (purportedly to assist the LTTE), were said to be explained by the applicant's age, as he was a teenager, when the events occurred and constituted a "minor discrepancy";

(b) the fact that the applicant was unable to provide information regarding the sourcing of the alleged weapons or explosives that the applicant claimed he was transporting with his uncle for the LTTE (IAA[17]) was also submitted to be capable of explanation by the applicant's age and by the fact that he was assisting his uncle;

(c) the apparent implausibility of the applicant's claim as to the frequency of reporting obligations of his uncle H "every two to three months" (IAA[18]) said to be supported by the fact that the applicant had referred to it twice;

(d) the Authority's finding that if the applicant's uncle H had been suspected of providing non-military support to the LTTE, it is likely he would have been sent to a rehabilitation centre (IAA[18]);

(e) the alleged discrepancies in the applicant's statements regarding the applicant's claim that his uncle H had assisted the LTTE (IAA[19]); and

(f) the alleged failure of the Authority to understand the applicant's statement that his uncle H "maintains he had no connections or involvement with the LTTE" said to give rise to his uncle H maintaining he had no connection or involvement with the LTTE, not that in fact he had no connection with the LTTE.

1. It is worthwhile noting the following with respect to the Authority's reasons. The applicant's claims are comprehensively set out by the Authority at IAA[6]-[7] and no issue is taken with respect to them in the prospective appeal. The Authority, thereafter, in a detailed way, dealt with each of the applicant's claims. It is apparent that the Authority accepted certain of the applicant's claims and rejected others: IAA[14]-[19].
2. As will be apparent from the impugned findings above, the applicant takes issue with certain of the Authority's findings regarding matters relied upon by the applicant which provide the source for his claim that he was a person of adverse interest to the Sri Lankan authorities, or any other group, prior to his departure from Sri Lanka or since: IAA[21]-[22]. The Authority was not satisfied that the applicant had or would be imputed with any LTTE connection as a result of his family links: IAA[23].
3. Ultimately, the Authority found that the applicant did not meet the definition of a "refugee" or meet the criteria under s 36(2)(a) of the Act: IAA[38]. For the same reasons as set out above, the Authority was not satisfied that, as a necessary foreseeable consequence of being returned from Australia to Sri Lanka, there was a real risk that the applicant would suffer significant harm. The Authority therefore found that the applicant does not meet the criteria in s 36(2)(aa) of the Act: IAA[41]-[42].
4. The relevant aspects of the Authority's reasons, leading to the impugned conclusion, at IAA[23], are as follows:

17. In his first statement the applicant claims that in 2010 he was at work with his mother's brother, uncle H, and H received a phone call from the TID telling him to report to the TID office in Colombo for questioning, so he went to Colombo that day. The next day H's family received a call to let them know H had been detained in Colombo. H was detained for one and a half years, and he told the applicant he was targeted because the TID had accused him of transporting explosives on his fishing boat, and by car, to members of the LTTE in the Vanni, however his uncle maintains he had no connection or involvement with the LTTE. At the SHEV interview the applicant said he worked with both Uncle A and H, and indicated it was around 2007 to 2008 they had been assisting the LTTE by transporting weapons, fuel and other necessary things by boat whilst engaged in fishing. Later during the SHEV interview the applicant said he was working with his uncles in the 2008 to 2009 period. When questioned by the delegate about what he remembers about transporting weapons for the LTTE the applicant provided only the barest of information. He was unable to provide information about where the weapons were coming from and restated on a number of occasions 'I was helping as well'. When asked to describe the journey he said it was by boat at night-time, that they just took them to a spot in the Kilinochichi and Mullaitivu areas for pick up, and then they did their fishing.

18. The applicant claims Uncle H was detained for one and a half years by the TID and released late in 2011. In his first statement the applicant indicated businessmen in the area, who had some authority in the community, helped his uncle by signing a bail bond so he could be released, however a condition of release was that he was required to report to the TID office in Colombo on a monthly basis. At the SHEV interview in August 2017 the applicant indicated his uncle is required to report to the TID every two or three months. Country information reports that since the end of the conflict, thousands of LTTE members have been arrested and detained in rehabilitation centres, including former combatants, those employed in administrative or other roles, and those who may have provided a high level of non-military support to the LTTE during the conflict.3 I consider if H had been suspected of providing non-military support to the LTTE it is likely he would have been sent to a rehabilitation centre. There is no evidence before me to indicate H was sent to a rehabilitation centre, nor is there any documentary evidence to support H was charged with any offence for which he could be bailed, including under the Prevention of Terrorism Act (PTA). In addition, I find it entirely implausible that over six years after release from detention that a person suspected of providing non-military assistance to the LTTE would continue to be subject to reporting every two or three months. Although I accept H may have been detained for a period of time, the absence of evidence regarding him being sent to rehabilitation, or charged with an offence and bailed, leads me to conclude he was not a person of interest to authorities after he was released, and I do not accept he was required to report regularly to authorities.

19. I take into account the applicant's evidence at the Arrival interview indicating he had no involvement with the LTTE, his first statement made in 2013 in which he said Uncle H had no connections or involvement with the LTTE, and also the applicant's evidence at the SHEV interview where he was unable to provide any significant details regarding the assistance he alleges to have given to his uncles in the transport of goods for the LTTE. The applicant's evidence was vague and unconvincing in relation to these matters. I also note the applicant did not refer to Uncle A providing assistance to the LTTE until his second statement in 2016, and he did not claim Uncle H assisted the LTTE until the SHEV interview. I consider the applicant has embellished his evidence to include the claim regarding he and his uncles providing assistance to the LTTE to support his claims for protection. I accept the applicant may have worked with his uncles as a fisherman, however, I do not accept the applicant or his uncles were involved in transporting goods for the LTTE.

20. I note at the Arrival interview the applicant indicated he left Sri Lanka because 'they' arrest youth, youngsters are being kidnapped, and he felt his life was in danger. He also indicated that his cousin was beaten, and 'we' stopped him being kidnapped. When asked whether police, security or intelligence organisations impacted his daily life in Sri Lanka he said they come suddenly and kidnap people and 'threaten us'. Although the applicant said he was in an LTTE controlled area, he indicated he had no involvement with the LTTE. The applicant did not allege during the Arrival interview that Sri Lankan authorities had any specific interest in him, and he provided only a general description of young people being arrested or kidnapped. At the SHEV interview the applicant said that because he worked with both his uncles, who were involved transporting weapons and fuel for the LTTE, he was also suspected of helping them. He indicated that after his uncle was kidnapped in 2010 authorities were searching for him seriously, coming to his home very often and enquiring about his whereabouts. He said he was in fear of the authorities and was running away from them, and that he did not stay at home and stayed at friends' houses in Colombo and Vavuniya.

21. With his SHEV application the applicant provided a copy of his Sri Lankan National Identity Card issued on 11 December 2011, a copy of his Sri Lankan Driving Licence issued on 27 August 2012 and a copy of the biodata page from his Sri Lankan passport issued on 27 January 2012. In the SHEV application the applicant indicates he worked from 2011 to August 2012 as a van driver in Mannar for his uncle's business while his uncle was detained. The delegate questioned the applicant why he would apply for a licence and passport when he said authorities were looking for him. He said he was driving so he needed a licence to drive vehicles, that it was the TID who was looking for him, and he had to get a passport because he wanted to leave the country because of his fears. Initially the applicant claimed he applied for the passport because 'they were searching for me very often'. However, later in that interview when the delegate asked him why he went back to Mannar in 2012 when he had said he was in hiding in Colombo and Vavuniya in 2012, the applicant said he went to see his family, and 'they weren't looking for me that much'. He said that because he was away from there for a while he thought they would not come looking for him. The delegate questioned the applicant at length about why he applied for a passport if he feared Sri Lankan authorities. The applicant said when he applied for the passport the government got his personal details, and they came back and they were looking for him, and in that time he was not there. The applicant's evidence regarding being in hiding, and whether authorities were searching for him was again vague, inconsistent and unconvincing. I do not consider a person in hiding from the authorities would engage with authorities to obtain a National Identity Card, nor would such a person be working driving and require a driving licence. I consider if the applicant had been a person of interest to the Sri Lankan authorities, including the TID, he would not have been issued with a passport, particularly if they were searching for him as claimed. Noting that the applicant indicated he was regularly working for his uncle's business, I consider it is implausible that if he had been wanted by authorities that they would not have been able to locate him. In addition, I note the applicant's consistent evidence in his SHEV application, and at the Arrival and SHEV interviews, that he had not participated in any armed conflict or fighting, or that he had been an LTTE member. I do not accept the applicant was in hiding from Sri Lankan authorities, or that he was a person of adverse interest to Sri Lankan authorities, or any other group, prior to his departure from Sri Lanka.

22. In his second statement the applicant indicated his mother told him the TID have enquired about him since he left Sri Lanka. The first visit was approximately five months after he left Sri Lanka, and his mother told them he had gone to Australia. The TID have come to the house a number of times since to check whether he has returned. At the SHEV interview the applicant indicated authorities have been searching for him since he has been in Australia. I have not accepted the applicant was a person of interest to Sri Lankan authorities prior to his departure, and similarly I do not accept authorities have been searching for him since his departure.

1. The applicant submitted in bare terms that the conclusion reached in IAA[23], adopting an "outcome-focussed" analysis was legally unreasonable, illogical or irrational given the matters set out in particulars (a) to (f). I do not accept the force of this submission.
2. The concept of legal unreasonableness is concerned with the enforcement of the law governing the limits of the power in question and not the manner of its exercise. Where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise will not be legally unreasonable simply because the Court disagrees with the outcome or justification: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [92] per Wigney J. Two possible analytical approaches to the ascertainment of unreasonableness include unreasonableness as to the outcome of the exercise of power, or the reasoning that led to that outcome: Minister for Immigration, Citizenship and Multicultural Affairs v Lieu [2023] FCAFC 57; 297 FCR 162 at [82] per Mortimer CJ. The applicant in this case asserts the former. Where reasons are given for the exercise or non-exercise of a power, it is against those reasons that the Court conducts its review as to reasonableness: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [47].
3. As adverted to by the Full Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21, the characterisation of a decision (or a state of satisfaction) as being legally unreasonable because of illogicality or irrationality is not easily made out: at [33]. Not every lapse of logic will give rise to jurisdictional error, rather it must be established that the decision (or state of satisfaction) was so lacking a rational or logical foundation that no rational or logical decision-maker could reach it.
4. Notably, the applicant contends, by particulars (i) and (ii) of the sole ground, that the Authority's adverse findings referred to in particulars (a) to (f) were unreasonable, and were the result of the Authority failing to properly consider the material. In this regard, I accept the submission of the Minister that in neither the applicant's oral nor written submissions has the applicant particularised what "material" the Authority failed to properly consider.
5. It is apparent from reading the Authority's reasons that the Authority gave careful consideration to the applicant's claims during the arrival interview and SHEV interview, as well as the applicant's written submissions and his statutory declaration and statement setting out his claims (IAA[4]-[7]; [15]; [17]-[23]; [31]). This Court did not have a transcript of the SHEV interview before it.
6. Particulars (a) and (b) assert possible explanations (his age and the limited assistance he was provided) for the Authority's findings as to deficiencies in the applicant's evidence regarding his claim to have assisted his uncle and the LTTE. The particulars relate to the Authority's reasoning at IAA[17]. The Authority does no more in that paragraph than recount the different evidence given by the applicant in his first statement and the SHEV interview.
7. By particular (c), the applicant contends that there was a purported failure by the Authority to acknowledge that the applicant had on two occasions stated that his uncle was required to report monthly. This is presumably relied upon by the applicant to suggest that he had consistently maintained this claim. However, it is clear from the Authority's reasons, that the Authority, at IAA[18], was concerned not with an inconsistency in recollection but rather that the claim was "implausible" on a number of bases as identified within that paragraph (extracted above) including because of the alleged time period during which his uncle was required to report, being over six years after his uncle's release from detention, in circumstances where there was no evidence of him being sent to rehabilitation or charged with an offence or bailed. For similar reasons, I can discern no error arising from the Authority's consideration of the absence of evidence regarding the applicant's uncle having been sent to a rehabilitation centre in particular (d). It was open for the Authority to take into account the absence of that evidence, as part of a number of factors, leading to the Authority's conclusion at IAA[18] that it did not accept that the applicant's uncle was a person of interest after his release and was required to report regularly to authorities.
8. Particular (e) concerns the alleged failure of the Authority to take into account the applicant's purported explanation in the applicant's second statement as to his lack of fulsomeness in his first statement as to his (and his uncles') involvement with the LTTE. This alleged explanation was said to be as contained in paragraph [2] of that statement, where the applicant stated he wished "to provide some further background about my family". As can be seen from the above, the Authority considered, at IAA[17]-[22], each of the applicant's claims giving rise to his ultimate claim of being a person of interest. It is notable, as the Authority identifies, that the applicant made no claim of him or his uncles actually assisting the LTTE (as distinct from being imputed of the same) until the SHEV interview (and therefore after the arrival interview and him having prepared two statements). I do not accept that there is such an alleged explanation for the change in the application on the face of paragraph [2] of the second statement nor that it could give rise to legal unreasonableness, illogicality or irrationality.
9. As to particular (f), the applicant claimed that the Authority failed to properly understand the material before it concerning uncle H's involvement with the Authority. At IAA[19], the Authority stated that in the applicant's first statement (in 2013) he had said that "Uncle H had no connections or involvement with the LTTE". The applicant's statement had said that:

My uncle told me that he was targeted because the TID had accused him of transporting explosives on his fishing boat and by car to members of the LTTE in Vanni. My uncle maintains he had no connections or involvement with the LTTE.

1. By this the applicant appeared to assert that it was not open for the Authority to state that the applicant had said that his uncle had no connections or involvement with the LTTE but rather only that he had maintained he did not. Notably, in the same statement, the applicant went on to state, at [9]:

I became a suspect because I worked with my uncle in his fishing business. The CID were not convinced that my uncle had no involvement with LTTE and started suspecting me of being involved with my uncle's LTTE alleged activities. .....

1. I do not accept that it was not open for the Authority to understand the applicant's statements in the way that it did and for the Authority to form the view that the applicant changed his claims, in material respects, at the SHEV interview. There was no claim in either of the applicant's two statements before the SHEV interview that the applicant or his uncle H (as opposed to his uncle A) had in fact assisted the LTTE.
2. As will be apparent from the foregoing, the Authority's conclusion to affirm the decision under review was based on a detailed consideration of the applicant's claims (as made at various points in time) which were partly accepted and rejected. Its reasons were rational; drawn from consideration of matters which were logically probative. The prospective appeal contains no apparent merit and leave is refused to extend time and rely upon the new ground.

1. For these reasons, the application is dismissed with costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Raper.