DNT17 v Minister for Home Affairs

Background 7 The following background, which I did not understand to be in dispute, is substantially taken from the Minister's submissions. 8 The applicant is a citizen of Sri Lanka of Tamil ethnicity. He arrived in Australia by boat on 26 September 2012 as an unauthorised maritime arrival. 9 On 20 July 2016 the applicant lodged his application for the SHEV. He made the following claims: (1) he was a volunteer with the Red Cross in 2005 to 2006 and worked in an area controlled by the Liberation Tigers of Tamil Eelam (LTTE). On 10 October 2006, while travelling to Batticaloa, he was stopped by unknown men in a white van and forced into the van, blindfolded and taken to a small room in a house at an unknown destination where he was asked to join the Criminal Investigation Department (CID) and the Tamil Makkal Viduthalai Pulikal (TMVP). The men who were present offered him a bribe to be a spy and to investigate the LTTE. The applicant refused and was therefore accused of being an LTTE supporter, threatened and assaulted; (2) the following day he went to work at the Red Cross and told his supervisor what had happened and that he should not say anything. After this he did not return to work. About three days later two individuals came to his home and threatened him and demanded that he join them. The applicant refused. As his family were inside the house the men could not harm him and they left. For the next few days those individuals frequently came to his home harassing him and asking him to join them but he refused; (3) because he feared being killed, the applicant found employment in Dubai and lived and worked there from July 2007 until March 2010 when his visa expired. About ten days after he returned from Dubai the CID and TMVP members who had previously targeted him heard of his return. Approximately four people came to his home, threatened him and then left. The next day the TMVP and CID members again came to his home. They were armed with guns and demanded 20 Laks from him. The applicant told them that he did not have the money and they left without harming him; (4) the applicant then applied for a visa to Qatar. As the application took a long time he did not leave Sri Lanka until November 2011. In the interim he did not stay with his parents and kept a low profile; (5) in July 2012 the applicant returned from Qatar for his father's funeral. On 30 July 2012, the day after the funeral, the CID and TMVP members again came to his home and demanded payment from him and threatened to kill him if he did not pay. The applicant feared for his life and tried to plan another trip to Qatar. However, his visa was coming to an end; (6) after this the CID and TMVP members often came to his home to harass him. He stayed with different people and moved houses to remain safe; (7) on 5 September 2012 the applicant left Sri Lanka illegally; and (8) since leaving Sri Lanka the CID and TMVP members continue to question his mother about his whereabouts and threaten to kill him if they find him. 10 The applicant claims to fear harm because of his Tamil ethnicity, his imputed political opinion as an LTTE supporter and his imputed political opinion against the CID and TMVP. 11 On 10 February 2017 a delegate of the Minister refused to grant the applicant the SHEV. The matter was then referred to the Authority for review. 12 On 12 July 2017 the Authority affirmed the decision under review.

The Authority's decision 13 The Authority accepted that: (1) the applicant volunteered with the Red Cross from 2005 to 2006; (2) the applicant was abducted by men in a white van, interrogated, beaten and threatened, and his family was threatened; (3) the perpetrators of these acts were affiliated with the CID and the TMVP and the applicant was offered a bribe to join these men, become a spy and obtain information against the LTTE; (4) the applicant was asked whether he was an LTTE supporter, which he denied. He was then verbally abused, threatened and beaten with a stick and suffered injuries; (5) about three days later and for a few days subsequently individuals came to the applicant's home, threatened him and demanded that he join them but he always refused; and (6) the applicant left Sri Lanka for Dubai legally on his own genuine passport. 14 The Authority then considered the period after the applicant's return from Dubai. It accepted that he returned to Sri Lanka after his work visa had expired. At [17] and [18] of its reasons the Authority relevantly said: 17. … The applicant claimed that around ten day after his return, around four men came to his home and demanded money. The applicant said that he recognised one of the men as the same man who had threatened him before he had left for Dubai. He claimed that the men threatened him and said that if he did not give him the money they would kill him. He said that he told them that he did not have any money and the men went away. He claimed that they returned the next day, this time with guns and demanded money from him and his family again. He said that they pointed a gun at him and said that they would shoot and when the applicant did not give them any money, they left. At his interview, the applicant said that these men were more interested in extorting money from him and he thought that they would want more money. 18. The Danish Immigration Service reported that the Pillayan faction and TMVP cadres, due to a lack of funds, were resorting to extortion, even though they held political power in the Eastern Province. Information also indicates that "many incidents related to the paramilitary groups are not reported as people keep quiet about them". The applicant has been consistent throughout his arrival interview, application and interview recounting these events. Based on the consistency of the applicant's evidence and also the country information, I accept that when he returned to Sri Lanka in 2010 from working in Dubai he was extorted for money and it is plausible that these men were from paramilitary groups. Considering that the applicant returned to his home village, it is also plausible that one of these men was one of the men that had previously threatened the applicant at some point from 2005 to 2007, however I consider that it is improbable that this man came with the specific intent to harm the applicant or recruit him into the CID or the TMVP. I consider it was in an opportunistic capacity to extort money from the applicant and his family following his return from overseas. Based on the applicant's own evidence, the men went away without harming either himself or his family when they did not pay. At his interview the applicant said that three years after he had left Sri Lanka his situation was that he thought they wanted money and that he did not know what the intentions of the men were and I accept that the men returned to ask for money. I am of the view that the visits and threats that the applicant and his family encountered from these men were as a result of extortion and for no other reason. (footnotes omitted.) 15 The Authority considered and accepted that the applicant travelled to Qatar using the same passport that he used to travel to Dubai and remained there until July 2012 when he returned for his father's funeral. The Authority accepted, based on the applicant's consistent testimony, that after his return from Qatar people came to his home and attempted to again extort money from him. At [21] of its reasons the Authority said: 21. The applicant claimed that as a result of these constant threats, he feared for his life and left Sri Lanka illegally in 5 September 2012. I accept that the applicant may have feared that he would be harmed from these men who attempted to extort money from him and his family. However, I have also taken into account that whenever these men harassed the applicant and his family for money from 2010 to 2012, they always left without an incident when the applicant or his family could not pay them. I accept that the applicant moved to different locations to in order to avoid harassment from these individuals and I accept that this level of harassment must have been daunting for the applicant however, the extortionists had not resort to physical violence aside from slapping the applicant or took any adverse action against the applicant's family when they were unable to pay any sums of money. When asked at his interview whether his family experienced problems in their home he said that his family did not face problems from this particular group. His family remained in their home and did not indicate that they had to relocate or move from their house because of any problems they were facing. The last serious instance of harm against the applicant was in 2006 when I have accepted he was asked to join the TMVP or the CID or spy on the LTTE. I consider the incidents that occurred past 2006 to have been opportunistic attempts to extort money from the applicant with no adverse consequences when the applicant or his family were not able to pay the extortion demands. The applicant, when asked at his interview whether his family who still lived in the same village had faced any problems since he arrived in Australia said that they had not. This also indicates to me that the applicant is of no interest to the SLA or any other Sri Lankan authority, paramilitary group or anyone else for that matter. I have accepted that when the applicant returned from Dubai in 2010 and Qatar in 2012 he was approached by men in an attempt to extort him for money. However, it has now been five years since the applicant has left Sri Lanka and I find that the chance that the applicant would be approached by the same men to extort money if he were to return to Sri Lanka remote. 16 The Authority accepted that the applicant departed Sri Lanka illegally and that the authorities would be aware that he had made a claim for protection in Australia but it was not satisfied that he would be detained for more than a brief period or that he would be mistreated during investigation or detention given its findings that he was not of adverse interest to the authorities. The Authority found that the treatment of the applicant under the Immigrants and Emigrants Act, which was a law of general application, would not constitute persecution. 17 The Authority concluded that the applicant did not have a well-founded fear of persecution and did not meet the requirements of the definition of refugee in s 5H(1) of the Migration Act 1958 (Cth) (Act) or s 36(2)(a) of the Act. The Authority then considered whether the applicant was entitled to complementary protection. Having done so, it concluded that he did not meet the requirements of s 36(2)(aa) of the Act.

Federal Circuit Court PROCEEDING 18 On 7 August 2017 the applicant lodged an application for judicial review with the Federal Circuit Court (Judicial Review Application). The proceeding was set down for mention at a callover on 31 May 2018. As the applicant failed to appear at that time, his application was dismissed pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules. 19 On 12 June 2018 the applicant filed an application in a case in the Federal Circuit Court seeking reinstatement of his application for judicial review (Reinstatement Application). 20 On 31 January 2019 the Federal Circuit Court dismissed the Reinstatement Application. It is those orders that are the subject of the Leave to Appeal Application. 21 The primary judge identified the issue for consideration as being whether the order dismissing the applicant's substantive application should be set aside. His Honour noted that the relief sought by the applicant was discretionary and that the discretion was to be exercised with caution having regard to the importance of the finality of litigation in the public interest, but recognised the need to balance that consideration with the obligation of the court to ensure litigants have the opportunity to present a case where there is a real dispute. His Honour observed that the elements for consideration in the case before him were whether the applicant had provided a satisfactory explanation for his failure to appear at the previous court occasion and whether there was an arguable case, or such merit in the substantive application calling for review, or whether the interests of justice required that the applicant should be given the opportunity to present his case: DNT17 at [23]-[24]. 22 The primary judge first considered the applicant's explanation for his failure to appear before the court on 31 May 2018 and found that the applicant had not provided a satisfactory explanation for that failure. This was because: (1) the applicant's evidence that he knew of the callover date but then forgot was contrary to his affidavit evidence that he had left everything to his lawyers and did not understand the relevance of the callover date; (2) the applicant had been put on notice of the date of the callover on three occasions and the email from the applicant's counsel, which was in evidence before the primary judge, was clear and unequivocal in its terms; (3) neither the Reinstatement Application nor the Judicial Review Application were prepared by a lawyer and thus there was sufficient evidence to say that the applicant was not "helpless"; (4) the applicant's belief that he had until 25 June 2018 to obtain a new lawyer could not be explained by the applicant and could only be described as self-serving; and (5) the applicant had been given reasonable and ample notice of the callover and the absence of any plausible explanation for his claimed memory loss meant that that self-serving assertion should be rejected, see DNT17 at [43]-[53]. 23 Having found that there was no satisfactory explanation for the applicant's non-attendance at the callover, the primary judge turned to consider the merits of the proposed grounds in the Judicial Review Application. There were eight grounds, including three raised in written submissions prepared by counsel. The primary judge found that each of those grounds lacked merit. Only grounds 1 and 3 are relevant to the Leave to Appeal Application. Those grounds are: 1. The Respondent misconstrued and misinterpreted the claim that the CID and TMVP men came to extort money from the applicant not for any other reason. The Respondents made a jurisdictional error by ignoring the fact that the CID and TMVP men accused him to have worked for the LTTE. And: 3. The Second Respondent's finding on paragraph 21 of the Reasons and Decision, that "it has now been five years since the applicant has left Sri Lanka and I find that the chance that the applicant would be approached by the same men to extort money if he were to return to Sri Lanka is remote" is erroneous as the relevant claims that the applicant was repeatedly approached by the CID and TMVP men on his return back from Dubai and Qatar was ignored and his fear of being framed as a LTTE member was also not taken into consideration. 24 The primary judge considered ground 1 at [58]-[76] of his reasons. His Honour observed that the issue raised by ground 1 was said to be whether the Authority was correct in coming to the view that the CID or TMVP came to the applicant to extort money and for no other reason. The primary judge also noted that the applicant sought to impugn the Authority's view on the basis that it had also found that it was possible that those persons had come to harm the applicant, or to recruit him into the CID or the TMVP. His Honour summarised the claim as being that the Authority's finding that they came only to extort the applicant and for no other reason contradicted its finding that they had come to harm or recruit him. 25 The primary judge considered that ground 1 overlooked the fact that the Authority had considered the applicant's claims as they related to events over a period of years and that its finding in respect of extortion was made in the context of the applicant having just returned to Sri Lanka from working overseas and having not been otherwise harmed. The primary judge found that, when read fairly, the Authority's reasons were not illogical or unreasonable in the requisite sense and that the finding that the applicant sought to impugn in the last sentence of [18] of the Authority's decision record was reasonably open to it, probative of the evidence and flowed logically in the temporal context made clear by the Authority. 26 The primary judge addressed ground 3 at [86]-[93] of his reasons. His Honour noted that ground 3 directed attention to [21] of the Authority's decision record and that, in summary, the complaint was directed to the Authority's finding that the chance of being approached for extortion from the same men, if the applicant was to return to Sri Lanka, was remote. His Honour observed that this finding was said to be "erroneous" because the applicant claimed to have been repeatedly approached by these men on his return to Sri Lanka from Dubai. The primary judge also noted that the applicant claimed that the Authority did not take into account his fear of being "framed" as an LTTE member. 27 The primary judge observed that the applicant's ground did not seem to understand that the focus of the Authority must be on the reasonably foreseeable future. His Honour found that the Authority did not fail to consider the applicant's claims of past harm. To the contrary it accepted that he had been approached by CID and TMVP men in the past. However, the primary judge observed that at [21] of its decision record the Authority considered, appropriately, the real chance of harm in the foreseeable future and that it found that the chance of the applicant being approached by the same men to extort money from him was "remote", given the passage of five years since he had left Sri Lanka.

leave to appeal application 28 The Notice of Appeal which is now annexed to the Leave to Appeal Application and marked "draft" raises a single unparticularised proposed ground of appeal as follows: The Federal Circuit Court failed to find, in respect of the IAA that the IAA declined its jurisdiction to me on the basis of grounds including the main ground stated in my Federal Circuit Court Application (Substantive Application) and Applicant's Submissions before the FCC. The ground of review and particulars which were stated in my Federal Circuit Court application and Applicant's Submissions were filed in the Federal Circuit Court. The decision of the IAA is vitiated by jurisdictional error. I am the Appellant. I am self-represented at this stage. I propose to seek further legal advices once I have obtained my Appeal Book. 29 The history of the proceeding in this Court is set out at [3]-[6] above. As I have already observed, the hearing proceeded on the basis of the Leave to Appeal Application in which the applicant raises the following grounds: The Federal Circuit Court erred when it dismissed the Appellant's Appeal Grounds appealing the decision of the IAA to the Federal Circuit Court. The Appellant repeats the Grounds 1 & 3 Only upon which he relied in the Federal Circuit Court: 1. The IAA misconstrued and misinterpreted the claim that the CID and TMVP men came to extort money from the applicant not for any other reason. The Respondents made a jurisdictional error by ignoring the fact that the CID and TMVP men accused him to have worked for the LTTE. 3. The Second Respondent's findings on paragraph 21 of the Reasons and Decision, that "it has now been 5 years since the applicant has left Sri Lanka and I find that the chance that the applicant would be approached by the same men to extort money if he were to return to Sri Lanka is remote" is erroneous as the relevant claims that the applicant was repeatedly approached by the CID and TMVP men on his return back from Dubai and Qatar was ignored and his fear of being framed as a LTTE member was also not take into consideration. (emphasis in original.) 30 While, as explained at [28] above, the draft notice of appeal annexed to the Leave to Appeal Application is the Notice of Appeal, I have proceeded on the basis that it is the grounds included in the Leave to Appeal Application that the applicant would seek to advance on appeal should orders be made extending time and granting leave to appeal. 31 In the May 2019 Affidavit the applicant explained the reason for the delay in commencing the proceeding and failing to file an application for leave to appeal upon commencement of the proceeding. He gave the following evidence: (1) on about 31 January 2019 he received a phone call from his solicitor in the Federal Circuit Court proceeding informing him that the court had dismissed his application with costs. He attended his solicitor's offices and was advised that he had to lodge an appeal within 14 days of 31 January 2019 should he wish to appeal the decision; (2) as he wished to appeal the decision he attended this Court's registry on 8 February 2019, showed Registry staff a copy of the Federal Circuit Court judgment and was provided with a "Notice of Appeal from Federal Circuit Court of Australia" form which he subsequently completed. He said that he intended to engage a solicitor if "there were any reasonable grounds"; (3) relying on the document that had been given to him, the applicant did not understand that he was required to file other documents to appeal from the Federal Circuit Court decision and thus did not attach an application for leave to appeal form; (4) on 13 February 2019 he met with his solicitor who assisted him in completing the notice of appeal form which he then took to the Registry of this Court for filing. Upon arrival at the Registry the applicant was informed that he was required to pay an application fee of several thousand dollars but that he could apply to have the fee waived. At that time he was given a fee waiver form for completion; (5) on 15 February 2019 the applicant completed the fee waiver form and the affidavit, again with the assistance of his solicitor. However, he did not have proof of payment of his weekly rent which was an important aspect of the fee waiver. It took him several days to obtain the requisite proof and it was only on 18 February 2019 that his friend signed a statutory declaration stating that he was receiving weekly rent from the applicant; and (6) accordingly, it was not until 18 February 2019 that the applicant was able to provide all of the relevant documents to the Registry for his fee waiver application. The applicant said that the fee was waived a short time later and he was then able to file the Notice of Appeal.

Legal principles 32 The principles governing both the grant of an extension of time and leave to appeal in cases such as the one before me are well settled. 33 In exercising its discretion to grant leave to appeal the court will consider first, whether in all the circumstances the decision at first instance is attended by sufficient doubt to warrant its reconsideration by a full court; and secondly, "whether substantial injustice would result if leave were refused, supposing the decision to be wrong": see Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398. The test is cumulative and is not satisfied unless each limb is made out: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation (2010) 81 ATR 36; [2010] FCAFC 139 at [5]. 34 In exercising its discretion to grant an extension of time, the court will consider: (1) the length of the delay and the explanation for the delay; (2) any prejudice to the respondent, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time; and (3) the merits of the substantive appeal, if leave were granted, see Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 (Singh) at [20]. 35 As the Full Court observed in Singh at [21] the proposed grounds of appeal should be considered on their face and examined at a "reasonably impressionistic level" and the court "should not descend into a fuller consideration of the arguments for and against each ground".

The applicant's submissions 36 The applicant submitted, based on his evidence , that there was a reasonable excuse for the four day delay in commencing the proceeding, that the Court should accept his reasons for filing the incorrect documents at the outset and that the delay was occasioned by the need to complete the fee waiver form. 37 As to the merits, the applicant noted that he relied on two proposed grounds of appeal and submitted that the primary judge erred in making his finding that those grounds, which were included in the Judicial Review Application, had no merit and in thus dismissing the Reinstatement Application. 38 The applicant submitted that ground 1 concerned [18] of the Authority's decision record where the Authority accepted that, upon returning from Dubai, the applicant was extorted for money and it was plausible that the men who extorted him came from paramilitary groups; and, given the applicant returned to his home village, it was also plausible that one of those men was one of the men who had previously threatened the applicant at some point between 2005 and 2007. However the applicant pointed out that the Authority then found that it was "improbable that this man came with the specific intent to harm the applicant or recruit him into the CID or the TMVP" and that the Authority considered it "was in an opportunistic capacity to extort money from the applicant and his family following his return from overseas". 39 The applicant contended that the word "improbable" as used by the Authority imported the possibility that it was true that this man came with the specific intent to harm the applicant or recruit him into the CID or TMVP. The applicant further contended that the Authority's conclusion at the end of [18] of its decision record, that the visits and threats made to the applicant and his family at that time were as a result of extortion "and for no other reason", could not sit with its earlier finding of improbability and that there was an inconsistency in the Authority's logic. 40 The applicant noted that this argument was made to the primary judge, who rejected it. He submitted that his Honour erred in doing so because he did not recognise that there was element of illogicality in the two positions and that the Authority's finding that the purpose of the men's visit to the applicant was for extortion and no other reason was simply not open to the Authority if it had previously found that there was a possibility that the men had come with the intent to harm or recruit him. 41 In relation to ground 3 the applicant submitted that, given the history of men coming to the applicant's house as recorded in the Authority's decision, whether they be individuals or CID or TMVP members, the Authority's conclusion at [21] of its decision record was "too fine a point". That is, the Authority's conclusion that "[i]t has now been five years since the applicant has left Sri Lanka and I find that the chance that the applicant would be approached by the same men to extort money if he were returned to Sri Lanka remote" did not consider whether the applicant was concerned about other people and instead confined its consideration to the "same men". The applicant further submitted that the Authority ought not to have confined itself to considering a claim that the applicant was only worried about specific people when, on the evidence set out at [17] of the decision record, he only recognised one of several people. 42 The applicant contended that the Authority made a finding that was either not open to it on the evidence or, if it was open, did not consider the whole of the claim put by the applicant. 43 The applicant submitted that the primary judge did not address the question of whether the Authority's conclusion about the "same men", as opposed to unidentified men from the CID or the TMVP, was considered.

Consideration 44 Common to the application for leave to appeal and application for an extension of time is the question of the merit of the proposed grounds of appeal. It is thus convenient to address that issue first. 45 It was not in dispute that the primary judge's refusal to make the orders sought by the applicant, namely to set aside the order dismissing his Judicial Review Application, involved the exercise of a discretion. Ultimately then, in order to succeed in his appeal, the applicant will have to establish that in exercising that discretion the primary judge made an error of the type identified in House v The King [1936] 55 CLR 499 at 504-505 (House v The King). That is, he must establish that the primary judge acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, was mistaken about the facts, did not take into account a material consideration or, if it is not apparent how the primary judge reached his or her result, that it appears, based on the facts, that it is unreasonable or plainly unjust. 46 Counsel for the applicant accepted that in order to succeed in the proposed appeal the applicant would need to establish that the primary judge's discretion miscarried in one of the ways described in House v The King and that if he could establish error in the way in which the primary judge addressed ground 1 and/or ground 3 that would be sufficient to demonstrate that the primary judge's discretion had miscarried.

Ground 1 47 Ground 1 of the proposed appeal takes issue with the primary judge's finding that there was no merit in ground 1 of the Judicial Review Application. That ground alleged that the Authority misinterpreted the claim that the CID and TMVP men came to extort money from the applicant and not for any other reason and ignored the fact that the CID and TMVP men accused him of having worked for the LTTE. 48 The primary judge found that the Authority had a proper basis for reaching its conclusion in [18] of its decision record that the visits from the men were only for the purpose of extorting money from the applicant and that there was nothing illogical or unreasonable in the requisite sense in the Authority's reasoning in that regard. The primary judge therefore concluded that ground 1 lacked merit such as to support the application for reinstatement. 49 The primary judge set out and considered the evidence relied on by the Authority (at [18] of its decision record) in reaching its conclusion and found that the matters set out there provided a probative basis for the Authority's conclusions. In particular that on his return from Dubai the applicant was extorted for money probably by paramilitary groups; while it was plausible that one of the men who came to extort the applicant in 2010 may have been one of the men who had threatened him in 2006 or 2007, it was improbable that in 2010 this man came with the specific intent to harm the applicant because the applicant had just returned from overseas with money and neither he nor his family were harmed; and the applicant's evidence was that these men were more interested in extorting money from him and he thought that they would want more money. 50 There is no error, let alone arguable error, in the primary judge's finding that ground 1 in the substantive Judicial Review Application has no merit. As the primary judge found, when the Authority's reasons are read fairly, the Authority's conclusion was open to it, probative of the evidence and not illogical or unreasonable. There was nothing contradictory in its reasoning as alleged by the applicant.

Ground 3 51 Ground 3 of the proposed appeal takes issue with the primary judge's finding that there was no merit in ground 3 of the Judicial Review Application, which alleges that the Authority erred in finding at [21] of its decision record that, given the passing of time, the chance that the applicant would be approached by the same men to extort money if he returned to Sri Lanka was remote. This was said to be because the claims that the applicant was repeatedly approached by the CID and TMVP men were ignored and his fear of being framed as an LTTE member was also not taken into consideration. Ground 3 of the Judicial Review Application did not allege that the Authority failed to consider a claim that the applicant feared harm from unidentified people as opposed to the same men. 52 The primary judge addressed ground 3 as articulated. At [87] of his reasons his Honour summarised the claim and at [89] he found that the Authority did not fail to consider the applicant's claim of past harm and accepted that he had been approached by CID and TMVP men in the past. At [90] of his reasons the primary judge observed that the Authority considered, appropriately, whether there was a real chance of harm in the foreseeable future, and found that, given the passage of time, the chance of the applicant being approached by the same men was remote. 53 At [92] of his reasons the primary judge referred to some of the Authority's reasons at [21] of its decision record, namely the applicant's evidence that his family did not face problems in their home "from this particular group"; his family remained in their home and did not need to relocate or move house because of any problems they were facing; the last serious incident that the applicant encountered was in 2006 when he was asked to join the TMVP or CID or spy on the LTTE; and the applicant's family had not faced any problems since the applicant had been in Australia, which also indicated that the applicant was of no interest to the Sri Lankan Army or any Sri Lankan authority, paramilitary group or any other group. It was after making those findings that, having accepted that upon his return from Dubai and Qatar in 2010 and 2012 respectively the applicant had been approached by men in an attempt to extort money, the Authority said that "it has now been five years since the applicant has left Sri Lanka and I find that the chance that the applicant would be approached by the same men to extort money if he returned to Sri Lanka remote". 54 The ground was properly summarised and addressed by the primary judge and, as his Honour found, the Authority did consider the applicant's claim that he was repeatedly approached by CID and TMVP men before reaching its conclusion that he would not be subject to extortion by the same men on his return given the passage of time. The reference to "the same men" must be read in the context of the whole decision and as a reference to men from the TMVP and CID generally. 55 The applicant has not demonstrated that there is sufficient doubt in the reasons of the primary judge to warrant their reconsideration. The applicant's proposed grounds of appeal lack merit. He has no arguable basis to establish that the primary judge's discretion miscarried. In light of that it is not necessary for me to consider the applicant's explanation for the relatively short delay in commencing the proceeding.

conclusion 56 It follows that the Leave to Appeal Application should be dismissed with costs. I will make orders accordingly. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.