DEK17 v Minister for Immigration, Citizenship and Multicultural Affairs [2026] FCA 386

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

1. The following reasons relate to an application for an extension of time to appeal, and appeal, against the decision of the primary judge in DEK17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 719 (Primary Judgment or PJ).
2. The applicant is a citizen of Sri Lanka who arrived in Australia on 21 October 2012. On 20 May 2016, the applicant applied for a Safe Haven Enterprise (subclass 790) visa (SHEV). A delegate of the first respondent (Delegate) refused the applicant's SHEV application (Delegate's Decision). On 22 June 2017, the Immigration Assessment Authority (Authority) affirmed the Delegate's Decision (Authority's Decision).
3. On 17 July 2017, the applicant made an application to the Court below seeking judicial review. That application was not determined until 1 September 2022.
4. The applicant filed an Application for an Extension of Time (Extension Application) and a draft Notice of Appeal from the Primary Judgment (Notice of Appeal) in this Court on 11 November 2022. For unexplained reasons, these proceedings were not docketed to me until late-December 2025.
5. As I observed in AYF15 v Minister for Immigration and Citizenship [2026] FCA 384 at [4], irrespective of why there have been various delays (including those caused by the applicant), they reflect a sorry state of affairs. The applicant has been in this country for over 13 years and has been separated from his family during that time. While it is not the role of this Court to determine the merits of the applicant's SHEV application, there will be undoubted human implications for the applicant. What has transpired points to a sorry state of administrative inefficiency (with no one person at fault). It is a state of affairs that sadly falls well below the community's expectations as to the efficient administration of justice in the Commonwealth.
6. My sole task here is to determine whether the Extension Application should be granted, and, if so, whether the appeal should be upheld. For the reasons which follow, I am satisfied that the Extension Application should be granted but the appeal should be dismissed.

1. As noted above, on 20 May 2016, the applicant applied for a SHEV. His claim for protection was based on fears that he would be harmed due to his Tamil ethnicity and his political support for the Tamil National Alliance (TNA), which he considered would lead him to be imputed as being a supporter of the Liberation Tigers of Tamil Eelam (LTTE). The applicant referred to ethnicity motivated killings of his family members and attracting adverse attention following the civil war in Sri Lanka, including by assisting his uncle to run as a candidate in the 2012 elections. He claimed that men had come to his house and threatened his family, and that the Criminal Investigation Department was still looking for him.
2. The Delegate's Decision to refuse the SHEV was referred to the Authority for review.
3. On 22 June 2017, the Authority affirmed the Delegate's Decision on the basis that the applicant did not face a real chance of persecution on returning to Sri Lanka, did not meet the requirements of the definition of "refugee" in s 5H(1) of the Act and therefore did not meet s 36(2)(a) of the Act: PJ [16]. The Authority also considered that the applicant did not satisfy the requirements of s 36(2)(aa) of the Act on the basis that he did not face a real risk that he would suffer significant harm on return to Sri Lanka: PJ [16]. The Authority largely accepted the applicant's claims but made the following findings:

(a) it did not accept that the applicant's younger brother was involved in the LTTE or had been missing since the end of the war: PJ [10];

(b) the applicant had not been subject to any monitoring since the end of the war and there was no real chance that the applicant would face serious harm due to any links with the LTTE, having regard to available country information: PJ [11];

(c) the applicant's work for the TNA did not result in a real chance of serious harm if the applicant returned to Sri Lanka, and if the applicant further assisted the TNA, while he may be subject to low level harassment, it would not constitute serious harm amounting to persecution: PJ [12];

(d) if they occurred, the various visits by Sri Lankan authorities or other groups to the applicant's home were likely related to his departure from Sri Lanka and did not reflect an intention to harm him: PJ [13]-[14]; and

(e) the applicant would not suffer discrimination amounting to serious harm on the basis of his Tamil ethnicity or Hindu faith, and while he would face a degree of scrutiny at the airport on return to Sri Lanka, the processes to which he would be subject as a returnee would be applied on a non-discriminatory basis: PJ [15].

1. The applicant filed an application for judicial review of the Authority's Decision in the Court below on 17 July 2017. The applicant advanced the following grounds of review:
   1. The Immigration Assessment Authority ("IAA") found in paragraph 14 of its decision that if the applicant, on returning to Sri Lanka, were to continue to assist the TNA in future elections, he may be subject to low level harassment, but this "would [not] rise to the level of serious harm amounting to persecution". The IAA, in making this finding, assumed that the political climate in Sri Lanka at the time of the IAA's decision would not deteriorate. The country information before the IAA indicated that the "political climate" in Sri Lanka was fluid. In the circumstances, it was necessary for the IAA, in considering the position for the applicant into the reasonably foreseeable future from the time the applicant returned to Sri Lanka, to actively consider whether the political climate would remain the same or alternatively deteriorate. The IAA failed to take this step. This is a jurisdictional error.
   2. The IAA found in paragraph 20 of its decision that, in relation to the applicant's claim concerning visits by the authorities to the family home of the applicant in 2012 and 2013, "I do not accept that any of the visits were connected with the applicant's work for the TNA in the September 2012 elections" and "I am not satisfied that they indicate an ongoing intention on the part of [various groups] to harm the applicant". The language used by the IAA in its reasons in support of these findings indicates that the IAA had doubts about the findings. In the circumstances, the IAA should have considered the possibility that the visits were connected with the applicant's work for the TNA in the September 2012 election.
2. In relation to the first ground, the primary judge found that the Authority did not make an unwarranted assumption that the political climate in Sri Lanka would not deteriorate in the reasonably foreseeable future on the basis that, first, the primary judge's finding was consistent with the material before the Authority and, second, the Authority properly considered the applicant's claims in relation to whether he would face a real chance of serious harm on return to Sri Lanka at the time of the Authority's Decision and also in the reasonably foreseeable future: PJ [34]. Accordingly, the first ground failed.
3. With respect to the second ground, the primary judge found that there was "no equivocation expressed by the Authority as to the reasons for visits" and noted that the Authority had already given the applicant the benefit of the doubt as to the occurrence of the visits at all. The second ground therefore also failed.

1. The Primary Judgment was delivered on 1 September 2022.
2. Pursuant to r 36.03 of the Federal Court Rules 2011 (Cth) (FC Rules), the applicant was required to file a notice of appeal:

(a) within 28 days after:

(i) the date on which the judgment appealed from was pronounced or the order was made; or

(ii) the date on which leave to appeal was granted; or

(b) on or before a date fixed for that purpose by the court appealed from.

1. In accordance with r 36.03, the applicant's notice of appeal was required to be filed on or before 29 September 2022. He did not do so. Instead, the applicant filed the Extension Application on 11 November 2022, over 6 weeks out of time.
2. The explanation provided by the applicant for his delay was that he "was not aware of the judgment as [his] email was not open or for [him] to access and it was only on 3 November 2022 that [he] found the orders of [the primary judge] dated 1 September 2022".
3. It is uncontroversial, the Court has a broad discretion to extend time for appeal, having regard to the extent and reasons for the delay, any prejudice to the other party and the strength of the case to be brought: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9.
4. The delay here is not insignificant and the reasons for the delay provided by the applicant are somewhat unsatisfactory. However, the first respondent has conceded that he will not suffer any prejudice should the extension be granted. Moreover, in my view, assessed on an impressionistic basis, the applicant's appeal has sufficiently strong prospects of success to warrant its consideration (even though I have ultimately dismissed the appeal). Counsel for the first respondent conceded as much: T22.26-.32. I am therefore satisfied that it is in the interests of justice to grant the applicant an extension of time.
5. Accordingly, the Extension Application is allowed.

1. By his draft Notice of Appeal, the applicant advances the following grounds:
   1. Her Honour erred in finding that there was no equivocation expressed by the second respondent (Authority) as to the reasons for the visits in 2012 and 2013, and ought to have found that the Authority committed jurisdictional error by failing to consider the possibility that the visits were connected to the appellant's work for the TNA in the September 2012 elections.
   2. Further or in the alternative, the Authority materially failed to "give" the appellant "new information" in accordance with section 473DE of the Migration Act 1958.

1. Following a case management hearing attended by the applicant and the first respondent on 5 February 2026, and given that the applicant was unrepresented at that case management hearing, I ordered that the first respondent file his written submissions prior to the applicant and listed the matter for hearing on 25 March 2026.
2. The applicant did not avail himself of the opportunity to file written submissions and was unrepresented at the hearing before me. During that hearing, the applicant confirmed he had no submissions to make in support of his appeal other than to observe that he would have disclosed the fact that his brother had disappeared, that he did not "create any story", and that he has been in Australia for 14 years and misses his children.

1. By Ground 1, the applicant asserts that the primary judge erred in finding that there was no equivocation expressed by the Authority as to the reasons for the visits by authorities to his home in Sri Lanka in 2012 and 2013, and ought to have found that the Authority committed jurisdictional error by failing to consider the possibility that the visits were connected to the applicant's work for the TNA in the September 2012 elections. Ground 1 largely mirrors the second ground of review rejected by the primary judge (see [12] above).
2. In my view, the primary judge was correct to conclude that the Authority's statements at [20] of the reasons for its decision must be read in the broader context of its reasons at [15]-[20], including, in particular, the Authority's doubts as to whether the alleged visits to the applicant's family home occurred at all and the conclusions already reached about the reasons for the visits (if they did in fact occur): PJ [41]-[42], [45]. The primary judge indicated that despite its doubts as to whether the visits occurred at all, the Authority gave the applicant the benefit of the doubt and, assuming such visits occurred, considered the reasons for them: PJ [43].
3. I am also satisfied that the primary judge was correct in concluding that the Authority did not express any uncertainty in its ultimate conclusion that the alleged visits to the applicant's family home were not indicative of an ongoing intention on the part of the Sri Lankan authorities to harm the applicant.
4. I discern no error in the primary judge's reasons. Her Honour's reasons reflect an accurate and fair reading of the Authority's Decision. As no error has been established in the primary judge's reasons, Ground 1 fails.

1. By Ground 2, the applicant asserts that the Authority materially failed to "give" the applicant "new information" in accordance with s 473DE of the Migration Act 1958 (Act). It is accepted that s 473DE of the Act, which has since been repealed, imposed obligations on the Authority at the time of the Authority's Decision. That section provided as follows:

473DE Certain new information must be given to referred applicant

(1) The Immigration Assessment Authority must, in relation to a fast track reviewable decision:

(a) give to the referred applicant particulars of any new information, but only if the new information:

(i) has been, or is to be, considered by the Authority under section 473DD; and

(ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and

(b) explain to the referred applicant why the new information is relevant to the review; and

(c) invite the referred applicant, orally or in writing, to give comments on the new information:

(i) in writing; or

(ii) at an interview, whether conducted in person, by telephone or in any other way.

(2) The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.

(3) Subsection (1) does not apply to new information that:

(a) is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or

(b) is non-disclosable information; or

(c) is prescribed by regulation for the purposes of this paragraph.

Note: Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

1. Section 473BB of the Act defined the expression "new information" as having "the meaning given by subsection 473DC(1)". Section 473DC of the Act provides as follows:

(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a) were not before the Minister when the Minister made the decision under section 65; and

(b) the Authority considers may be relevant.

(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a) in writing; or

(b) at an interview, whether conducted in person, by telephone or in any other way.

1. The words "documents" and "information" are not otherwise relevantly defined in the Act.
2. The applicant did not particularise the "new information" the Authority was obliged to give him and in relation to which the Authority was required to invite comments from him. However, the applicant had previously filed a Notice to Admit asking the first respondent to admit the following facts:
   1. That as at 4 November 2016 "Departmental file CLF2016/931", referred to in the delegate's Protection Visa Decision Record of same date, did not contain the sound recording of the applicant's 27 January 2013 entry interview.
   2. That as at 4 November 2016 "Departmental file CLF2016/931", referred to in the delegate's Protection Visa Decision Record of same date, did not contain the transcript of the applicant's 27 January 2013 entry interview.
3. The first respondent initially filed a Notice of Dispute in relation to these facts but now accepts that they are correct and abandoned its reliance that Notice. The first respondent conceded that the sound recording (Sound Recording) and transcript (Transcript) of the applicant's 28 January 2013 entry interview (Entry Interview) were not on "Departmental file CLF2016/931" as at 4 November 2016 (ie the date of the Delegate's Decision) but were provided to the Authority for its review.
4. Although the applicant did not plead any breach of s 473DD of the Act, that section operates as a gateway to section 473DE in that under s 473DE, the Authority must only give the applicant particulars of any "new information", explain the relevance of the "new information" and invite the applicant to give comments on that "new information" if it "has been, or is to be, considered by the Authority" pursuant to s 473DD. Section 473DD provides 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.

1. It is next necessary to consider the application of these provisions to the Transcript and the Sound Recording, to which I now turn.

1. To the extent that the "new information" referred to in Ground 2 refers to the Transcript, I am not satisfied that there was any non-compliance with ss 473DE or 473DD of the Act. That is because I am not satisfied that the Transcript was "new information" within the meaning of ss 473BB and 473DC of the Act.
2. Although the first respondent has admitted that as at the date of the Delegate's Decision, the "Departmental file CLF2016/931" did not contain a copy of the Transcript, I am satisfied that the Transcript was, in fact, "before" the Delegate at the time that the Delegate's Decision was made such that the Transcript did not meet the requirements of s 473DC(1)(a) of the Act. I have come to this conclusion based on the objective facts from which compelling inferences are to be drawn that the Delegate did in fact have a copy of the Transcript. Those facts are as follows.
3. First, the Delegate's Decision made several references to the content of the Entry Interview. These references include the following:

(a) the Delegate referred to the fact that the applicant was "consistent in providing information during his arrival interview ... that he is Tamil";

(b) the Delegate stated that the applicant "ha[d] been consistent in his entry interview ... that, he is of Hindu faith";

(c) the Delegate stated that, "I am satisfied from the applicant's arrival interview ... that his claim to be Hindu is credible";

(d) the Delegate stated that, "[a]t the PV interview the applicant claimed his younger brother was missing and he was involved with the LTTE. The applicant claims he did not mention this at his arrival interview, because he was afraid"; and

(e) the Delegate then stated that "[t]he applicant failed to state ... in his entry interview" that he "feared he would be harmed by the Sri Lanka authorities and the Karuna Group, because of his brother's involvement with the LTTE".

1. I am satisfied that the Delegate's references to the "arrival" or "entry" interview is a reference to the Entry Interview which was recorded in the Transcript and Sound Recording.
2. I am further satisfied that (as the Delegate was not present at the Entry Interview), the references made by the Delegate to what the applicant had said in the Entry Interview clearly indicates that the Delegate had access to and considered the contents of the Transcript.
3. Second, the first respondent gave unchallenged evidence via its solicitor that its document management system indicated that the Transcript was accessed on, relevantly, 6 September 2016 and 26 October 2016. The evidence establishes that the Delegate conducted the applicant's Protection Visa Interview (referred to as "PV interview" in the reasons for the Authority's Decision) on 27 October 2016. The document management system records that the Transcript was accessed on these occasions by a person identified as "User no longer registered" indicating that the person who accessed the Transcript was no longer employed by the relevant Department. The solicitor for the first respondent gave evidence that the Delegate was no longer employed by the first respondent's Department and that this wording appears in relation to user profiles where those users have left the Department and their access has been removed from the document management system.
4. The temporal proximity between when the Transcript was accessed and when the Delegate conducted the Protection Visa Interview enable me to infer that it was in fact the Delegate who accessed the Transcript prior to and for the purposes of that Interview.
5. As a result of these matters, I am satisfied that the Transcript was in fact "before" the Delegate such that it was not "new information" for the purposes of ss 473DD or 473DE of the Act. Accordingly, I am satisfied there has been no non-compliance with ss 473DD or 473DE in relation to the Transcript.

1. The position in relation to the Sound Recording is slightly different. I am not satisfied that the Sound Recording was "before" the Delegate for the purpose of s 473DC(1)(a) of the Act. The first respondent accepts that as at the date of the Delegate's Decision, "Departmental file CLF2016/931" did not contain the Sound Recording.
2. The unchallenged evidence from the first respondent's solicitor is that the document management system indicates that the Sound Recording was accessed on 3 September 2015 and 9 November 2015 (again by "User no longer registered"). However, Counsel for the first respondent accepted that, unlike in the case of the Transcript, these dates hold no particular significance from which an inference could be drawn that the Sound Recording was "before" the Delegate when the Delegate's Decision was made: T9.38-.40. Additionally, there is nothing on the face of the Delegate's Decision to indicate that the Sound Recording was "before" the Delegate at the relevant time. First, as noted at [37] above, the reasons for the Delegate's Decision disclose no references to information obtained during the Entry Interview (see [36] above) which cannot be found in the Transcript. Second, there are no references to the applicant's demeanour in the reasons for the Delegate's Decision from which an inference might be drawn that the Delegate had relied upon the Sound Recording.
3. I am prepared to infer that the Sound Recording contained information that was not contained in the Transcript in three respects. First, the so-called Transcript is not a conventional transcript containing a fulsome record of what was said during the Entry Interview, but rather a form with fixed questions and answer boxes as well as other information provided by the applicant. Second, as a result, I am prepared to infer that the Sound Recording may have contained more general and other information that may not have been recorded in the Transcript. Third, I am satisfied that the Transcript does not capture non-verbal cues based on, for example, body language and tone of voice.
4. However, it is necessary to recall that to meet the definition of "new information" as contained in s 473DC(1) of the Act, the Sound Recording has to be information that was "not before the Minister when the Minister made the decision under section 65" and that the Authority "considers may be relevant". In other words, it is not enough that the relevant information was not "before" the Minister or Delegate, it also has to be information that the Authority considers may be relevant. In the absence of developed submissions on the part of the applicant, it is not clear what the content of the new information is, let alone whether the Authority considered that it "may be relevant". This has not been established on the evidence before me. That is a reason to conclude that the Sound Recording does not constitute "new information" within the meaning of s 473DC(1) of the Act and that therefore there has been no relevant non-compliance with the obligations contained under the Act.
5. There is a further reason why I do not consider that there has been any relevant non-compliance. That is because, even if the Sound Recording contained "new information" for the purpose of ss 473BB and 473DC of the Act, as noted above, pursuant to s 473DE(1) of the Act, the Authority was only obliged to give the applicant particulars of any new information, explain the relevance of that new information and invite the applicant to give comments on the new information if it "has been, or is to be, considered by the Authority under s 473DD". Section 473DD of the Act prevents the Authority from considering new information unless the conditions in ss 473DD(a) and 473DD(b) have been satisfied. Accordingly, in order to determine whether the Authority did not comply with ss 473DD or 473DE of the Act, it is necessary to determine whether the Authority "considered" the Sound Recording. This raises a question of fact.
6. First, there is no evidence that the Authority specifically considered the Sound Recording and there is nothing on the face of the reasons for the Authority's Decision which indicates this.
7. Counsel for the first respondent noted that the Authority made no findings by reference to the Sound Recording or any other findings based on the applicant's demeanour which might have suggested that the Authority considered (or relied on) the Audio Recording as opposed to the Transcript: T10.14-.16. The Authority's Decision contains the following references to the Entry Interview:

The applicant did not claim at any time, until some way through the SHEV interview, that his brother had been with the LTTE. He denied at the entry interview, and initially at the SHEV interview, that any of his relatives were involved with political groups. He did not claim at the entry interview, in his SHEV application, or initially at the SHEV interview, that his brother was missing; in fact he stated that his three brothers were living in Batticaloa.

1. As with the references to the Entry Interview in the reasons for the Delegate's Decision, the Authority's reasons disclose no references to information obtained during the Entry Interview which are not included in the Transcript. For example, the applicant's answer to Question 29 in Part B of the Transcript indicates that his three brothers were all residing in Batticaloa and none were missing. The applicant pointed to no materials that indicated that the Authority had considered the Sound Recording.
2. Second, at [4] of the reasons for its decision, the Authority noted that it had obtained new information, being the Department of Foreign Affairs and Trade (DFAT) Country Information Report for Sri Lanka dated 24 January 2017. The Authority evaluated the relevance of that new information and justified its consideration of it. In view of the Authority's express references to this new information, it provides some support for the fact that the Authority did not consider any other new information including the Sound Recording.
3. Third, in circumstances where the Authority had a copy of the Transcript of the Entry Interview, nothing in the Authority's Decision or other materials before me, indicate (let alone suggest) that the Authority considered the Sound Recording of the Entry Interview.
4. In light of the above, I am not satisfied that the Authority "considered" the Sound Recording. Even if I were satisfied that the Sound Recording met the definition of "new information" which was "considered" by the Authority under s 473DD (thereby satisfying s 473DE(1)(a)(i)), the applicant has failed to establish that the Authority did not comply with s 473DE on the basis that the applicant has failed to identify what parts of the Sound Recording formed "...the reason, or a part of the reason, for affirming the fast track reviewable decision" as required by s 473DE(1)(a)(ii) of the Act.
5. Accordingly, I am not satisfied that it has been established that the Authority failed to comply with ss 473DD or 473DE of the Act and, therefore, Ground 2 fails.

1. For the foregoing reasons, I will make orders that:

(a) the application for extension of time filed on 11 November 2022 be allowed;

(b) the notice of appeal filed on 11 November 2022 be dismissed; and

(c) the applicant pay the respondents' costs of the proceeding as agreed or taxed.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Shariff.