DQR18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1611

Note: The Court may vary or set aside a judgment or order to remedy minor typographic, clerical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (Rules)), or to record a variation to the order pursuant to r 24.04 of the Rules.

1. Mr DQR18 is a citizen of Sri Lanka who came to Australia as an 'irregular maritime arrival'. He applied for a Safe Haven Enterprise (subclass 790) visa (the visa). He claimed he was at serious risk of being persecuted if he returned home on account of (a) his ethnicity (he is a Tamil), (b) his political opinions and activities, and (c) his status as a person who had sought asylum in the West. Mr DQR18 filed submissions and attended an interview before a delegate of the minister (the first respondent in these proceedings). The delegate refused the visa, and the matter was thereafter referred to the Immigration Assessment Authority (the IAA) for review. The IAA affirmed the delegate's decision on 5 June 2018.
2. The applicant now seeks judicial review of the IAA's decision. The application for review was filed 3 days outside the time limit set in s 477(1) of the Migration Act 1958 (Cth). Mr DQR18 therefore requires an extension of time under s 477(2) of the Act if he is to proceed. The discretion to extend time may be exercised when the Court is satisfied it is necessary in the interests of the administration of justice to do so.
3. The minister opposes the extension of time. He says Mr DQR18 has not given a satisfactory explanation for the delay. More importantly, the minister says Mr DQR18's application for judicial review lacks merit.
4. I agree the grounds of review are not made out. While I considered allowing the extension of time and dismissing the application for judicial review on the merits, it is unnecessary to do so. For reasons I will explain, the application for extension of time is refused. That means the applicant's proceedings in this Court come to an end.

1. Mr DQR18 arrived in Australia in October 2012. He travelled to this country on a boat. He applied for the visa in question in this case on 16 May 2016. His application is reproduced in exhibit one (the court book) at pp 53ff. The application was lodged by Mr DQR18's migration agent.
2. The application included a statement setting out Mr DQR18's protection claims. Those claims included information about his two brothers being killed in the civil war that engulfed Sri Lanka. The statement recorded Mr DQR18's own involvement in resistance activities. He claimed he was arrested, detained and tortured on several occasions. He said he was shot in the left thigh by Sri Lankan authorities in 2003. The statement also referred to the death of Mr DQR18's brother-in-law and Mr DQR18's departure from Sri Lanka in 2006. He said he travelled to Qatar where he worked for a time before returning home. He said he was subsequently detained by Sri Lankan authorities and experienced harassment and violence even though he was no longer actively involved in resistance activities. He came to Australia with the assistance of a people smuggler in 2012. His wife and children remained behind in Sri Lanka. He says they continued to be harassed.
3. The applicant was asked to participate in an interview with a delegate of the minister on 16 August 2017. Mr DQR18's migration agent provided written submissions. Amongst other documents, the migration agent provided a death certificate in respect of the applicant's brother: court book at p 163 (translation at p 165).
4. The delegate's decision is dated 6 September 2017. A copy of the decision and the statement of reasons is reproduced at pp 169ff of the court book. The delegate accepted parts of the applicant's evidence but concluded some of the evidence was exaggerated. The delegate said there was limited evidence that the applicant would be a target, especially in circumstances where there has been a change in government in Sri Lanka.

1. The delegate's decision was referred to the IAA because Mr DQR18 was a 'fast track' applicant. The IAA wrote to the applicant on 11 September 2017 to inform him of the referral. The letter explained the minister's department had provided the IAA with all the information it thought was relevant to the review. The letter went on to say the IAA could only consider 'new information' in limited circumstances. Those circumstances are discussed in the practice direction reproduced at pp 197ff of the court book.
2. The practice direction says (at [20]) an applicant may provide written submissions explaining (a) why the applicant disagreed with the delegate's decision and (b) any claim or matter that was presented to the department that was overlooked. At [23], the practice direction explained the IAA could only consider new information (i.e., information that was not before the department when the delegate made the decision) in the limited circumstances set out in s 473DD of the Act. Section 473DD provides:

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. Mr DQR18 provided a brief submission by email dated 18 September 2017: court book at p 202. He asserted the delegate's decision contained "quite a few Jurisdictional error" [sic]. The email referred to the death of Mr DQR18's older brother and the fact his sister-in-law had been given refugee status in Queensland. He claimed his case and that of his sister-in-law were identical. He added he was a qualified butcher with a job, and insisted he faced the same fate as his older brother if we were forced to return to Sri Lanka. The email included an untranslated copy of an arrest and detention record: reproduced in the court book at p 203.
2. The IAA's decision is dated 5 June 2018. The decision and statement of reasons is reproduced in the court book at pp 209ff. The IAA identified the material that was already before it, and it considered what it should do with the information in the applicant's submission dated 18 September 2017 that related to his sister-in-law and the arrest and detention record. The IAA concluded the information was new but it was not provided with a proper explanation of why the information was not supplied previously. The IAA also noted the arrest and detention record was untranslated. It also observed the reference to the status of the applicant's sister-in-law did not include sufficient detail that would allow a proper comparison. The IAA found it was not satisfied there were exceptional circumstances that justified considering the new information.
3. The IAA thereafter summarised the applicant's claims (at [9]). Those claims were said to include the fate of Mr DQR18's brothers and Mr DQR18's "imputed association with the [resistance movement] because of scarring on his thigh after having been shot by Sri Lankan authorities". Many of those claims were accepted, at least in part: at [41]. In particular, I note the IAA accepted the applicant had been shot by authorities while engaging in resistance activities.
4. The IAA also discussed some of its concerns about aspects of the applicant's account. It found at [25]:

Given the not insignificant inconsistencies, changes and credibility issues with his evidence, which in my view go well beyond minor discrepancies that could be attributed to factors such as recall problems, misunderstandings in interpreted material, cultural communication issues or a lack of cohesive narration due to trauma, I am satisfied that the applicant has exaggerated and fabricated parts of his evidence in order to boost his protection claims.

1. The IAA discussed the country information reports and other evidence which addressed the then-current environment in Sri Lanka. In the course of that discussion, it observed (at [43]):

In relation to the applicant's gunshot wound in his thigh, country information suggests that scarring was, anecdotally, a matter of interest to the Sri Lankan authorities during the war and in its immediate aftermath when considering suspected LTTE involvement but that it is no longer the case.

The applicant does not have a profile that country information suggests he is at risk of harm, now or in the foreseeable future, for any real or perceived LTTE links, for any imputed political views and/or as a young Tamil male from the north. I do not consider that the Sri Lankan authorities had any adverse interest in the applicant other than as part of the former Rajapaksa government's then general harassment and monitoring of Tamils in the north and east around the time he left Sri Lanka, nor, given that the Sri Lankan authorities have not made any further enquiries about the applicant's whereabouts since he left Sri Lanka in September 2012, and the harassment and monitoring of Tamils has significantly decreased under the Sirisena government, together with a person's past LTTE involvement no longer generally being of interest, that he would be of any adverse interest to the Sri Lankan authorities, or that he faces a real chance of suffering harm, if he returned to Sri Lanka.

1. The IAA also considered claims based on the applicant's religion and the risk he might be identified as a failed asylum seeker upon his return to Sri Lanka. The IAA concluded the applicant did not face real risk of harm on either account. It found he did not meet the applicable criteria in s 36(2) of the Act.

THE APPLICATION FOR JUDICIAL REVIEW AND THE REQUEST FOR AN EXTENSION OF TIME

1. Mr DQR18's amended application for judicial review identifies five grounds. Mr DQR18 confirms he did not draft those grounds himself. He said he was assisted by people from within his community.
2. I have already explained it is necessary for me to decide whether the applicant should be given an extension of time pursuant to s 477(2) of the Act given his application for judicial review was filed three days out of time. While he only missed the deadline by three days, other factors must also be taken into account.
3. The applicant's reason for the delay was explained at the hearing. He said he did not speak or read English and did not have access to legal assistance. He said he depended on others from within his community to assist him. That assistance took some time to organise. Mr Reilly, counsel for the minister, said that was not a good excuse for the delay. He is right, although I have some sympathy for the applicant given his personal circumstances. This consideration does not weigh heavily against the exercise of the discretion.
4. Mr Reilly did not suggest the minister would experience any prejudice if the extension of time were granted. The applicant would presumably experience prejudice if the discretion to extend time were not exercised in his favour because his review may yet be cut short. The extent of any prejudice depends on the merits of the underlying application. If his application for review is unlikely to succeed, he will avoid the cost, inconvenience and uncertainty associated with prolonged proceedings. This consideration does not weigh for or against the exercise of the discretion.
5. That brings me back to the merits of the amended application for review. Mr Reilly argued the grounds were unlikely to succeed. If I agreed with that assessment, it would (he argued) weigh decisively against exercising the discretion to extend time.
6. The applicant filed a written outline of submissions in support of the grounds but those submissions only deal with grounds four and five. The applicant also struggled to explain what was meant in some of the grounds that we discussed at the hearing. I will nonetheless consider each of the grounds below.
7. The first ground contended the IAA's decision was affected by jurisdictional error because it had accepted some of the applicant's claims but not others. That meant "[i]t was necessary for the IAA to take into Account the possibility that those events claimed by the applicant occurred."
8. The applicant was unable to assist me when I asked him what he meant by this contention. Mr Reilly referred me to the decision of the Full Federal Court in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719 for an explanation. In that case, Sackville J explained (at [61]) that those making claims "may not present as models of consistency or transparent veracity" because their perspective may be shaped by their fears. That challenge needed to be taken into account when a tribunal of fact was evaluating the claims. His Honour said (at [62]):

... it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a "real substantial basis" for the applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.

1. Mr Reilly argued there was no reason to suppose the IAA had any doubts about any of the findings it made. He said the IAA's findings did not leave any room for speculation that needed to be explored. It followed there was no need "to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not": Rajalingam at [63]. That is right. A fair reading of the IAA's statement of reasons does not suggest any want of confidence in its own findings. It was not therefore obliged to explore alternative possibilities on the off-chance it was wrong: Rajalingam at [67]. That makes sense when one reads the statement of reasons as a whole. The statement makes clear the IAA discounted aspects of the applicant's evidence even as it accepted he had been at risk in the past. The focus of the decision was on how the applicant would fare if he returned given well-documented changes in Sri Lanka in recent years. I am satisfied the IAA's fact-finding and reasoning process cannot be faulted in those circumstances. It follows the first ground is not made out.
2. The second ground includes an allegation that the IAA acted unreasonably. The allegation is made after referring to aspects of the claim before the delegate - as well as the fate of the applicant's sister-in-law and the fact the applicant was the only son remaining alive in his family. The last of these concerns is irrelevant to the claim for protection, and the applicant conceded during the hearing that the evidence about his sister-in-law was not before the delegate or the IAA. The IAA cannot be criticised for failing to take account of evidence that was not before it.
3. As I explored this ground with the applicant, it became apparent he was not contending the IAA had missed anything of substance as it deliberated. His complaint, rather, was that it was inexplicable that the IAA could have reached the conclusion it did given the evidence he provided. He is wrong. While a different decision-maker might have made different factual findings and reached different conclusions, Mr DQR18 did not explain how the IAA's conclusions were illogical or unavailable on the evidence. The IAA does refer to all the matters the applicant mentioned in this ground (apart from the fate of the sister-in-law and his status as the sole surviving son) and makes findings which it explains. In particular, it gives a careful explanation at [24] of its reasons for not accepting some of the applicant's evidence about his experience and activities. This ground fails to grapple with the focus of the IAA's decision: namely, the information about the then-current environment in Sri Lanka. Put simply, the IAA accepted the applicant experienced difficulties in the past - even if it disagreed about the extent of those difficulties - but found the situation on the ground in Sri Lanka had changed such that the applicant was unlikely to face any real risk. The decision is not unreasonable and this ground must fail.
4. The third ground disputes the IAA's conclusion that it would not have regard to certain new information because it was not satisfied there were exceptional circumstances which made that appropriate. The applicant says that conclusion is found at [9] of the IAA's reasons. He is wrong. The IAA deals with the receipt of new information given the requirements of s 473DD at [2]-[8]. The extended paragraph [9] records the material before the IAA in light of the earlier findings. While the submissions the applicant had made to the delegate (reproduced at pp 141ff of the court book) are not expressly identified, the subject matter of those submissions appears to be incorporated in the material referred to at [9] and appears to be discussed at [40].
5. There is no basis for criticising the decision to refuse to accept the new information pursuant to s 473DD, and there is no basis for saying the IAA missed the material provided in the applicant's submissions to the delegate. There is no substance to this ground.
6. The fourth ground contends the IAA overlooked or failed to engage with important information that was material to the applicant's claim. The particulars to this ground contend the IAA missed the fact the applicant's scar left by the shooting would attract attention, but (as I have already explained) the IAA noted this claim and dealt with it: at [9], [41] and [43]. The applicant's claim that he had been on a monthly reporting regime was also considered and dealt with: at [25], [41], [43]-[44] and [57]. The third example of a missed claim referred to in the particulars involves a threat supposedly made against the applicant's family by the people smuggler with whom the applicant contracted. Mr Reilly pointed out - and Mr DQR18 accepted at the hearing - that claim was never put to the delegate. There is no substance to this ground.
7. The fifth ground contends the IAA failed to consider the claims cumulatively. But the IAA expressly said it did consider the claims cumulatively: at [76]. While that statement is made when considering the claim for complementary protection, there is no reason to suppose the IAA took a different approach in relation to the claims for refugee status. Indeed, the structure of the reasons makes clear the IAA was weighing all the claims together as it made its assessment. It follows there is no substance to this ground of review.
8. I asked the applicant to explain any other criticisms of the IAA's decision in his own words. I carefully explained to him the sort of errors that might qualify as jurisdictional errors. It was readily apparent from the discussion which ensued that he was unable to identify jurisdictional errors. He was simply dissatisfied with the outcome and thought it unreasonable given all the evidence he had provided. In effect, he was inviting me to engage in merits' review. That is not the role of the Court.

1. The applicant has very poor prospects of succeeding if his application for judicial review were to proceed to a final hearing. While I take into account:
   • the applicant only missed the deadline for commencing these proceedings by three days;
   • he did not have a good reason for failing to act promptly, even though I have sympathy for his challenges; and
   • the respondent does not contend he will experience prejudice if the extension were granted;

the lack of merit weighs decisively against exercising the discretion in s 477(2) of the Act to extend time. It would not be in the interests of the administration of justice to allow these proceedings to continue in all the circumstances. The application for an extension of time must therefore be refused.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McCabe.