EBQ21 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1751

1. After being filed in 2021, the application was the subject of orders that it be listed for hearing of the EOT application and the substantive application at a date to be allocated. The usual directions were made for the first respondent to file a bundle of relevant documents with the Court in the form of a court book. The first respondent did so on 30 December 2021.
2. The next relevant step in the matter occurred on 15 August 2025, when the applicant lodged an interlocutory application with the Court to restrain the first respondent from removing him from the country. The applicant made that application from immigration detention. That application was heard on Tuesday 19 August 2025 and Friday 22 August 2025. On the latter date, the Court issued an injunction restraining the applicant's removal pending hearing and determination of the present application. The matter was given a date of 26 September 2025 for final hearing of both the EOT application and the substantive application. Although the Minister's submission stressed the importance of the regime under the Act for removal, that listing date was intended to balance the imperative to have the matter heard and determined as quickly as possible given the applicant was in detention, with the necessity of affording the applicant a fair opportunity to attempt to retain legal representation in relation to his application, the resolution of which would have serious consequences for the applicant.
3. At the hearing before this Court on 26 September 2025, the Court received into evidence, without objection, a court book which contained the IAA decision, the primary decision, and documents from the Department of Home Affairs concerning the applicant's arrival in Australia and visa application, from which the narrative below has been taken.
4. The Court also received into evidence an affidavit from one of the solicitors acting for the first respondent annexing a transcript of the audio recording of the applicant's protection visa interview on 23 January 2020 (interview transcript).
5. The applicant provided the Court, in the period leading up to the hearing, a number of documents including a letter to the Court dated 15 September 2025 in which the applicant described his circumstances, a psychological report from the New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS), and other documents in support of his application.
6. The documents were assembled into a bundle, for convenience, by the first respondent's representatives, and were the subject of a range of objections. Although the relevance of the documents to the Court's judicial review task was not immediately apparent, given the applicant was not legally represented, the documents in the bundle were received into evidence on a provisional basis so as to give the applicant an opportunity to demonstrate their relevance to the Court's task.

1. The criteria for the grant of the SHEV included that the applicant was a person in respect of whom Australia had protection obligations pursuant to ss 36(2)(a) or 36(2)(aa) of the Act. Those protection obligations were engaged, inter alia, if the applicant was a "refugee" (a term defined in s 5H of the Act) or if he satisfied the criteria for "complementary protection".
2. Section 36 of the Act provided, at all relevant times, as follows:

36 Protection visas - criteria provided for by this Act

(1A) An applicant for a protection visa must satisfy:

(a) both of the criteria in subsections (1B) and (1C); and

(b) at least one of the criteria in subsection (2).

(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

(a) is a danger to Australia's security; or

(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

Note: For paragraph (b), see section 5M.

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i) is mentioned in paragraph (a); and

(ii) holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i) is mentioned in paragraph (aa); and

(ii) holds a protection visa of the same class as that applied for by the applicant.

(2A) A non-citizen will suffer significant harm if:

(a) the non-citizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the non-citizen; or

(c) the non-citizen will be subjected to torture; or

(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the non-citizen will be subjected to degrading treatment or punishment.

(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

Ineligibility for grant of a protection visa

(2C) A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:

(a) the Minister has serious reasons for considering that:

(i) the non-citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

(ii) the non-citizen committed a serious non-political crime before entering Australia; or

(iii) the non-citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or

(b) the Minister considers, on reasonable grounds, that:

(i) the non-citizen is a danger to Australia's security; or

(ii) the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.

(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

(4) However, subsection (3) does not apply in relation to a country in respect of which:

(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:

(a) the country will return the non-citizen to another country; and

(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

(5A) Also, subsection (3) does not apply in relation to a country if:

(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

(6) For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.

(7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.

1. Because of the circumstances of the applicant's arrival into Australia, he was a "fast track applicant" and the primary decision was a "fast track decision" within the meaning of the Act as in effect at the time of the decision under review. As such, the review of the primary decision was governed by Pt 7AA of the Act (as in effect prior to 14 October 2024). That part established the IAA, provided for automatic review of "fast track decisions" by the IAA, and regulated the manner in which the IAA performed its review function. That Part provided that the IAA review was presumptively to be conducted "on the papers", and limited the circumstances in which the IAA may receive additional evidence or interview an applicant.
2. The applicant's EOT application invokes the Court's power under s 477 of the Act. That section provides as follows:
   1. Time limits on applications to the Federal Circuit and Family Court of Australia (Division 2)

(1) An application to the Federal Circuit and Family Court of Australia (Division 2) for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2) The Federal Circuit and Family Court of Australia (Division 2) may, by order, extend that 35 day period as the Federal Circuit and Family Court of Australia (Division 2) considers appropriate if:

(a) an application for that order has been made in writing to the Federal Circuit and Family Court of Australia (Division 2) specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b) the Federal Circuit and Family Court of Australia (Division 2) is satisfied that it is necessary in the interests of the administration of justice to make the order.

"date of the migration decision" means:

(a) in the case of a migration decision made under section 105 of the ART Act (other than a decision made by the ART in relation to an application under Part 5)--the day the decision is made under that section; or

(b) in the case of a migration decision made by the ART in relation to an application under Part 5--the day the decision is taken to have been made under subsection 368(6) or (7) or 368B(3); or

(c) in any other case--the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.

1. Pursuant to s 476(1) of the Act, the Court is conferred with the same original jurisdiction as that of the High Court under para 75(v) of the Constitution, namely, jurisdiction where a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. A writ of mandamus was sought in the applicant's originating application.
2. The Court's jurisdiction is exercisable to correct jurisdictional error.
3. Jurisdictional error describes a failure by a person or body that is given authority under a statute to exercise a power to comply with a condition attaching to the exercise of that power, where that failure has the result that the decision or exercise of power is regarded as lacking the authority of the statute. The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker may result where the decision-maker misunderstands the applicable law; asks the wrong question; exceeds the bounds of reasonableness; identifies a wrong issue; ignores relevant material; relies on irrelevant material; and in some cases, makes an erroneous finding or reaches a mistaken conclusion; or fails to observe some applicable requirement of procedural fairness: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [2]- [3]. In most cases an error will be jurisdictional in character only where it is material, in the sense that there is a realistic possibility that the decision could have been different if the error had not occurred: ibid [7].
4. The grounds of review in the applicant's originating application were:
   1. The Authority accepted that the Applicants may face brief detention on his arrival but failed to consider whether the prison conditions and the applicant would be degrading and inhuman treatment.

2. The IAA decided without sufficient evidences.

3. As per report, heavy price will be paid on their arrival.

4. The IAA failed to consider whether applicant has the means to pay the penalty.

5. They face long term imprisonment.

1. The decision of the IAA in respect of which review is sought was made on 13 March 2020. The time within which the applicant was required by s 477(1) of the Act to bring his application concluded on 17 April 2020. Accordingly, the period of the extension sought by the applicant is one year, six months and 19 days.
2. The power to extend time in subsection 477A(2) of the Act (which is relevantly identical to subsection 477(2) of the Act) was considered by the High Court in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579; [2022] HCA 28 (Tu'uta Katoa). At [12], the majority (Kiefel CJ, Gageler, Keane and Gleeson JJ) observed:

On its face, the power conferred by s 477A(2) is unfettered except by the requirements of a written application in conformity with s 477A(2)(a) and the Court's satisfaction that an order extending time "is necessary in the interests of the administration of justice". Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.

(footnotes omitted)

1. In MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 (MZABP), Mortimer J (as her Honour then was), said (at [58]) that the language of the subsection "does not import any necessarily different set of factors to those which have been identified as relevant, in a permissive rather than a mandatory sense, under regimes such as that established by s 11 of the AD(JR) Act". The latter was a reference to the oft-quoted passage in the decision of Wilcox J in Hunter Valley Developments v Cohen (1984) 3 FCR 344; [1984] FCA 176 (Hunter Valley). Her Honour went on to say that in applications to extend time to review decisions made under the Act it is appropriate to have regard to:

(a) The nature of the visa decision sought to be reviewed;

(b) The fact that a refusal to extend time will have the consequence that the Applicant will not have an appeal from that decision as of right; and

(c) Case management considerations in the busy Federal Circuit and Family Court of Australia migration list.

1. In Tu'uta Katoa, the majority said (at [17]) that, in determining what is necessary in the interests of the administration of justice, an assessment of the merits of the underlying application at a "reasonably impressionistic level" will ordinarily be appropriate, as the interests of justice are likely to be advanced by granting an extension of time where the application has some underlying merit. The majority went on (at [18]) to observe that more rigorous examination may be undertaken where a delay is lengthy and unexplained (and the Court therefore considers it appropriate that the applicant demonstrate prospects warranting such an exercise of the discretion), or where the proposed ground of review may be hopeless, which conclusion may only be reached upon a more detailed examination of a matter.
2. The EOT application and the grounds of review in the originating application are discussed further below, following a recitation of the background facts.

1. The applicant is a Tamil male born in 1991 in Jaffna, Sri Lanka.
2. The applicant arrived in Australia by boat in March 2013.

Enhanced Screening Interview with Department of Immigration and Citizenship (Department)

1. On 23 March 2013, the applicant was the subject of an "enhanced screening interview", of which a written record was made. The record does not appear to be verbatim. The applicant is recorded as making the following claims:

(1) His father had been killed during the war, the applicant was displaced and ended up in Batticaloa;

(2) He had been threatened by the Karuna group in Batticaloa in 2005. They had sent a letter telling "us" that we had to leave in 24 hours. He complained to the police about that, and they didn't send any more letters;

(3) During the district elections of 2012 he had been working for the Tamil National Party and was getting threats from the opposition who accused him of being with the LTTE because he was from Jaffna;

(4) His father's three brothers were fighters with the LTTE in Jaffna, but his father was not with the LTTE;

(5) The Karuna Group threatened to kill him after the district election in July 2012;

(6) He did not return to Jaffna at that time because his relatives were in the LTTE in Jaffna and he would be accused of being in the LTTE if he returned;

(7) In Jaffna he had some LTTE problems and in Batticaloa he had a political problem;

(8) If the applicant were returned to Sri Lanka he would be handed over to the Sri Lankan government. He would be at risk from the Karuna Group which has influence over the government.

1. The applicant also participated in an Irregular Maritime Arrival Entry Interview on 30 March 2013, of which a record was kept (arrival interview). That arrival interview records the applicant having lived in Batticaloa from 2005 to mid-February 2013, and his father as having been killed in 1996.
2. In the section of the arrival interview concerning the applicant's reason for leaving Sri Lanka, it records the following:

I lived in Jaffna and Batticaloa and because of that was I targetted as a LTTE supporter and was hard for me to find a job. I worked for Tamil Political Party, TNA and they lost elections to Karuna's group political wing and because I worked against them they started looking for me to kill me. I was living in fear and my mother wanted me to leave the country. I was looking for a way out and I got this opportunity and I fled.

Q Who were the people looking for you.

Karuna group.

Q How do you know.

I was working against them.

Q When this happened.

In 2012 election. They threatened me to kill me and said they will not find out what happened to you.

Q When this happened.

5 or 6 days after the election in 2012.

Q Who told you this.

They came to the place where I was playing cricket.

Q Did you know any of them.

No.

Q After this, have you continued living at the same place.

Yes.

Q Why nearly a year after the threat you decided to leave Sri Lanka.

I didnt have money and I didnt have contacts to leave the country.

Q Are there any other reasons for leaving Sri Lanka.

I cant live in Sri Lanka. Members of my family on father's side were LTTE members.

(reproduced without alteration from original)

1. In response to a question about when and how the applicant left his country of origin, the form recorded:

I left my house at approx Mid February 2013. I went to Trincomalee and from there to MATALE and stayed there for 10 days.

RANGAN organised accommodation in MATALE. He drove me to MATALE. From MATALE, RANGAN took me to another place, but I dont know where that place was. I stayed there for 12 days. Then RANGAN came with the coolling truck and took us from there. In the house we were 47 and they all got on the coolling truck. I didnt see any signage on the coolling truck. RANGAN also came with the coolling truck.

We travelled for 1.5 hrs and we arrived at the departure point. There were 5 small boats and took us to the big boat. I travelled on a small boat for 3 hrs. No passenger mentioned what is the name of the departure point.

RANGAN was at the departure point. He didnt come on a small boat to the big boat.

No uniform people at the departure point.

No authorities seen on the water.

No one got on/off the big boat.

Nothing happened during the journey.

Every day the boat would stop twice and the engine broke the day before we arrived here.

We travelled for 18 days.

Q Did you go to any other country during the journey.

No

I didnt drive the boat.

(reproduced without alteration from original)

1. On 17 March 2016, an officer of the Department of Immigration and Border Protection wrote to the applicant advising him that the Minister had exercised the power under s 46A(2) of the Act to allow the applicant to lodge an application for either a Temporary Protection (subclass 785) visa (TPV) or a SHEV. The letter recited that the applicant was otherwise barred from making such an application by s 46A(1) of the Act.

1. The applicant lodged an application for a SHEV on 23 March 2017.
2. The application attached a typed statement which was characterised as "a summary of my claims for protection."
3. The applicant stated (as per original):
   1. I fear that if I was forced to return to Sri Lanka, I would be seriously harmed because of my Tamil ethnicity, my imputed connection to the LTTE through my father and his family, and my political opinions, specifically my support of the Tamil National Alliance (TNA).

3. I fear this harm from the government authorities, specifically the Army.

1. In the statement, the applicant also said (as per original):
   1. I lived in Jaffna with my family until my father went missing after being arrested by the Army in 1996-1997 and we subsequently moved to Batticaloa on or about a year later. My mother told me at the time that my father had gone to another country, because she thought that if my siblings and I discovered that the Army had taken our father we would join the LTTE to seek revenge against the Army. I only found out several years later that he actually went missing after being apprehended by the Army, when I confronted my mother about where my father was. At this time, she explained to me why she had lied to me about what had happened to my father.
2. The applicant stated that in about 2011, his family had received a "red notice" from the Karuna Group informing them they had to leave Batticaloa within 24 hours, as it had discovered the family were from Jaffna. After they received the notice, the applicant's mother approached the Department of Education as she was a teacher and the Department of Education convinced the authorities the applicant's family should be allowed to stay.
3. The applicant described his support for the TNA in provincial council elections in 2012, in which he helped by canvassing houses in his local area. The applicant stated he believed he was recognised as a TNA supporter in his local area. He said that the Karuna Group were supporting the TNA's opponents, the Tamil Makkal Viduthalai Pulikal (TMVP).
4. The applicant then described an incident one or two weeks after the election where he was playing cricket on an oval with friends near the home of the TNA candidate (who was a member of Parliament). Four or five men arrived in a white van and started kicking and threatening to kill the applicant (not his friends). The friends ran away and were yelling that one of the men had a gun. The applicant stated that he believed the attack was because he was known to be from Jaffna and had supported the TNA. The TNA candidate came out of his house and the men left the scene.
5. The applicant claimed that on the night of the attack, his mother told him to go into hiding, and he did not return home after that night, instead staying with some of his mother's teaching colleagues. He moved between different houses for the next five or six months, and after about six months decided to leave Sri Lanka.
6. The applicant elaborated in the typed statement on his fears if returned to Sri Lanka, stating, amongst other things:

(1) (at [25]) "...I am afraid that I will be subjected to serious harm including death. I am afraid I will be continually targeted by the authorities because of my imputed previous support of the LTTE (through my father's support of, and his family's membership of, the LTTE). I fear this harm from the Army."

(2) (at [26]) "...I would be questioned by the authorities and after identifying me they would discover that my father was apprehended by the Army and is still missing due to his support of the LTTE, and that his siblings were LTTE members killed while fighting for the LTTE. I would be arrested and indefinitely detained, and I fear I would be seriously harmed while detained."

(3) (at [27]) "I am scared of returning to Sri Lanka as a failed asylum seeker. A friend of mine was deported from Australia back to Sri Lanka and was detained and tortured for 6 months without being charged with or convicted of anything. He told me this over Facebook after he was released. I heard on the news of other people who returned from Australia and were arrested and tortured by the authorities. For example, in approximately mid March I heard on the Tamil news that 25 people who had recently been deported from Australia back to Sri Lanka had been arrested in Sri Lanka."

1. The applicant participated in an interview with the Department of Home Affairs on 23 January 2020 utilising a Tamil interpreter. The applicant was assisted by a migration agent. A transcript of the interview was received into evidence at the final hearing before this Court.
2. The departmental officer who conducted the interview commenced by asking the applicant about his name, place of birth, ethnicity, religion, languages, address, and his personal identity documents.
3. The officer then asked about the applicant's travel to Australia; where he boarded the boat, how he had travelled to that location, whether they had been stopped en route, where they had boarded, how many people were on the boat, and whether the boat had stopped on the way to Australia. The officer then asked the applicant about where he had lived as a child.
4. The applicant stated that the family moved to Batticaloa in fear that what had happened to his father would happen to the family.
5. The applicant disclosed that his mother and sister remained in Batticaloa, and his mother worked as a school teacher.
6. When asked if he had done paid work in Sri Lanka, the applicant responded that he had worked in his grandfather's rice mill in Batticaloa until his departure, and had done that work since he was in year 5 at school. He also said that he had done building construction work as and when jobs come.
7. The officer asked the applicant if it was correct that he had never been involved in the "LTT" in any capacity. The applicant replied: "Not me, but my father was". He said that if the LTTE wanted food his father arranged and provided food, and some LTT would come and have food at their place, for others, his father would take food away and provide it to them. He also said that the LTT would come and use his father's vehicles, primarily his tractor. (I infer that the references in the transcript to the "LTT" were intended to be references to the LTTE, but the parties used the shorter acronym in the interview).
8. The applicant said that at the beginning his mother did not tell him that his father had gone missing, she told him that his father had gone to another country. She later explained that she had not told him out of concern that he might join the LTT to avenge his father.
9. The officer said that at the screening interview the applicant said his father had no involvement in the LTT, and his current statement was inconsistent with that, and asked why. The applicant responded that the interview was after a long and tiring boat journey and he was unsure what should be disclosed. Once he had settled down and had advice from lawyers, he had disclosed the position.
10. The officer asked the applicant about his claim about the "red notice", and his involvement in politics. The applicant said he had not been a party member, but had supported Tamil Arasu Kachchi in 2011 and 2012, pasting notices in public areas and canvassing house to house. The applicant spoke about conflict with members of the Karuna faction, initially appearing to narrate an incident during the election campaign when he was putting up posters and "Karuna Faction" members came and fought with the applicant and others, and then when the candidate arrived and spoke with them, the group went off. The applicant then narrated an incident after the election when the applicant and about seven friends were playing in the grounds and members of the Karuna group came in a van with guns, and beat the group the applicant was with, who then scattered and ran away. When the candidate came out of his house, the Karuna group members left and went away.
11. The applicant then described returning home, speaking with his mother, and his mother insisting that he had to move away because it was not safe for him to remain at home. He moved to stay with a colleague of his mother who lived 30 to 40 minutes away, and stayed there for one to one and a half months.
12. The applicant said that people came and enquired about him at his mother's house that night and two or three times thereafter. He worked at his grandfather's mill until this problem occurred.
13. The applicant also said there was a letter sent to his house in March 2013 from the CID (Criminal Investigation Department) asking him to come for questioning.
14. The officer asked the applicant why, after having been away from Sri Lanka for so many years he would have a profile of interest to anyone in Sri Lanka. The applicant responded that the LTT was being re-energised or being formed again, and that his father's support for the LTT would become known.
15. The officer then advised the applicant that he was required to put to the applicant information that may be a reason for refusing to grant the applicant the visa, and identified the following:

(a) The applicant's failure to mention in the arrival interview that the Karuna Group was after him;

(b) The applicant's failure to mention in the arrival interview that he had been in hiding - the applicant had said he continued to live in the same place until his departure; and

(c) The applicant's failure to previously mention the CID letter.

1. The applicant's migration agent then advised that the applicant had an arrest warrant and a copy of the red notice. The officer asked the applicant why he had not previously mentioned the arrest warrant.
2. At the end of the interview the officer gave the applicant and his representative seven days to provide further information.
3. At the conclusion of the interview the applicant's representative submitted that the recent reports, including the most recent Department of Foreign Affairs and Trade (DFAT) report did not take into account recent political changes with the election of Gotabaya Rajapaksa and the appointment of Mahinda Rajapaksa as Prime Minister. The applicant's representative submitted that Mahinda Rajapaksa was involved in many of the atrocities committed against Tamils, and that changed the political situation. She indicated she would address that in some written submissions.

1. The applicant's representative provided a lengthy submission on 30 January 2020. Given that the grounds upon which the applicant relies in seeking judicial review are directed towards the IAA's consideration of the treatment he would likely suffer upon his return, it is pertinent to set out the following part of the submission:

iii. Treatment of Failed Asylum Seekers

1. We submit the risk of harm faced by the Applicant if he were to return to Sri Lanka is heightened by his profile as a failed asylum seeker.

2. The Applicant departed Sri Lanka by boat without the use of official documentation. As his passport would have never been properly recorded, he will be viewed as someone who departed Sri Lanka illegally. The penalties for leaving Sri Lanka illegally include a 5-year prison term and fines. As reported by DFAT, 'returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the Immigrants and Emigrants Act (the I&E Act).'

3. The Applicant is likely to cause significant suspicion upon his return to Sri Lanka. We submit that as a result of the procedures adopted by the Sri Lankan authorities with respect to failed asylum seekers, the Applicant will attract the attention of the Sri Lankan authorities immediately upon his return to Sri Lanka, and that it is likely he will also be contacted by the military in his home area.

4. Country information indicates that the Applicant will be detained and interrogated on return and that his background will be thoroughly investigated. There is a real chance that he will suffer serious harm during the process of being questioned or while in the custody of the Sri Lankan authorities.

5. The Special Rapporteur on torture and other cruel, inhuman and degrading treatment noted that in Sri Lanka, suspects are often detained without being registered or brought before a judge for long periods of time, enabling torture to occur, and that torture occurs even for ordinary crimes and with impunity. We note that in reference to this report, the Immigration Assessment Authority (IAA) concluded that Tamils detained for anything more than a brief period in Sri Lanka would be subjected to serious harm.

6. February 2018 media releases by the Tamil Refugee Council in Australia indicate that Tamils returning to Sri Lanka have been detained for weeks or months and endured intensive interrogation, and that a Tamil man recently deported by the Australian government has been subjected to harassment and intimidation by the Sri Lankan authorities. His family members have also been subjected to harassment, including his mother and wife, with visits to their residence. According to the November 2017 Associated Press report, returned asylum seekers have been brutally tortured. Human Rights Watch has also expressed concern over the torture of returned asylum seekers in Sri Lanka, and the use of the PTA to enable security forces to detain and torture returned asylum seekers with impunity.

(footnotes omitted)

1. The applicant's submission was that he was at real chance or risk of harm whilst being detained and interrogated by the Sri Lankan authorities upon his return because he was a failed asylum seeker.

Refusal of Protection Visa Application and Referral to IAA

1. On 7 February 2020, a delegate of the Minister for Home Affairs wrote to the applicant advising that applicant's application for the visa had been refused and attached the record of the delegate's reasons for the decision.
2. On 13 February 2020, the primary decision was referred by the Department of Home Affairs to the IAA for review.

1. On 13 March 2020, the IAA affirmed the primary decision of the delegate to refuse the visa (the IAA decision).
2. The IAA accepted that the applicant's father had been arrested by the Sri Lankan authorities and disappeared in July 1996. However, the IAA did not accept that the applicant's father had ever supported or been involved with the LTTE, nor that his disappearance was due to support for the LTTE, given what it found were differences in the applicant's accounts about those matters.
3. The IAA accepted the applicant's claim that some of his father's relatives were members of the LTTE, but noted that he had not claimed that he himself was ever targeted or harmed because of his relationship to those members or former members of the LTTE.
4. The IAA rejected the applicant's claim that his family had received a "red notice" in Batticaloa.
5. Whilst accepting that the applicant had supported the TNA campaign, the IAA did not accept the applicant's claim to have been targeted by the Karuna Group at the cricket field shortly after the 2012 elections as he had claimed. Nor did the IAA accept that he had gone into hiding.
6. The IAA noted the applicant had not claimed to be of any interest to the Sri Lankan authorities at the time of his departure and was not satisfied that he was.
7. The IAA did not accept that the "arrest warrant" from the Terrorist Investigation Division (TID) that the applicant provided was a genuine document. It was not satisfied that since his departure the applicant had been sought by the Sri Lankan authorities including the TID, CID, or police.
8. The IAA was not satisfied the applicant faced a real chance of harm as consequence of his past support to the TNA and/or its candidate, on his return to Sri Lanka now or in the reasonably foreseeable future.
9. Based on the country information before the IAA, it was satisfied that the applicant would not be imputed with an adverse opinion or profile because of his Tamil ethnicity and the time he had spent living in Jaffna, and was not satisfied that the most recent evidence supported a conclusion that the applicant's past or present circumstances would lead to a real chance of any adverse interest or consequences for him on return.
10. When considering the risk arising in respect of the applicant's ethnicity, the IAA referred approvingly to country information indicating that Tamils who were perceived to have had a significant role in the LTTE and in post-conflict Tamil separatism or a renewal of hostilities within Sri Lanka are now at risk of serious or significant harm on return. The IAA noted a DFAT assessment that:

...those at highest risk of monitoring, arrest, detention or prosecution are high profile former LTTE members, including the former leadership, and former members suspected of terrorist or serious criminal offences during the conflict or of providing weapons or explosives to the LTTE. It also reported that while some Tamils with imputed LTTE links continue to report police monitoring and harassment, it assessed that Tamils with links to the LTTE are generally able to lead their lives without concern for their security as a result of their past association with the LTTE. Tamils, including those with imputed links to the LTTE, are no longer considered vulnerable to mistreatment and torture by virtue of their ethnicity or LTTE links.

The applicant departed Sri Lanka in 2013, and I am not satisfied given the passage of time, and the applicant's profile that he will be imputed with any type of profile because of his or his family's past or present circumstances on return to Sri Lanka. I am not satisfied he will be perceived to have a pro-LTTE or pro-Tamil or anti-Sri Lankan government political opinion, on his return to Sri Lanka. I am not satisfied the applicant faces a real chance of any harm as a Tamil male who was born and resided in Jaffna in Northern Province, his familial relationships or his past support to the TNA and/or TNA candidate on his return to Sri Lanka now or in the reasonably foreseeable future.

1. The IAA then went on to deal with the question of the applicant's illegal departure from Sri Lanka and his failed asylum claim. The IAA accepted that the authorities would either know or infer that the applicant had made claims for protection in Australia.
2. The IAA accepted that upon the applicant's return, police would undertake an investigative process to confirm his identity in which process they would identify any criminal or terrorist background, court order or warrants.
3. The IAA stated:

There is no evidence before me that he has outstanding court orders, arrest warrants or a criminal or terrorist background. There is also no independent information before me to suggest that absent any other concerns, that on return those who sought asylum unsuccessfully are imputed with an adverse profile or opinion or that such factors cumulatively would put him at risk of harm on return, and I am not satisfied that the applicant will be at risk of attracting the attention of the authorities on this basis.

1. The IAA was satisfied that the applicant would be detained at the airport upon his return for a period that would be brief and would not exceed several hours. It accepted that the applicant may be charged under the Immigrants and Emigrants Act (I & E Act) for departing Sri Lanka other than from an approved port of departure. It then set out information from the 2019 DFAT report to the effect that when an illegal departure is suspected, the returnee is charged by police at the airport and can remain in police custody for up to 24 hours and will be taken at the earliest opportunity to a magistrates' court. Where a magistrate is unavailable, the person may be detained for up to two days. Although the penalties for illegal departure can include imprisonment for up to five years and a fine, the IAA noted a report from the Sri Lankan Attorney General's Department that no fare paying passengers on people smuggling vessels had been given a custodial sentence. The IAA was satisfied there was not a real chance the applicant would be given a custodial sentence.
2. The IAA then considered the punishment that the applicant would face. At [50] as the IAA said:
   1. If the applicant pleads guilty to departing Sri Lanka illegally, he will be required to pay a fine, which can be paid in instalments, and will subsequently be able to go free. Where a fare-paying passenger returnee pleads not guilty, the Magistrate will usually grant bail on the basis of personal surety or guarantee by a family member. Where a guarantor is required, returnees may need to wait for the guarantor to come to court. The applicant has not claimed and the information before me does not indicate he would not be granted bail on personal surety, if he does in fact plead not guilty.

1. It is important to note before proceeding further, that it was not entirely accurate to say that the applicant had not claimed that he would not be granted bail on personal surety if he pleaded not guilty to an illegal departure charge. That scenario was not raised with the applicant in his interview. However, in the submission made by the applicant's representative on 30 January 2020, the applicant made a claim that he would be detained and held by the authorities, at [87] and [88] of those submissions as follows:
   1. Country information indicates that the Applicant will be detained and interrogated on return and that his background will be thoroughly investigated. There is a real chance that he will suffer serious harm during the process of being questioned or while in the custody of the Sri Lankan authorities.
   2. The Special Rapporteur on torture and other cruel, inhuman and degrading treatment noted that in Sri Lanka, suspects are often detained without being registered or brought before a judge for long periods of time, enabling torture to occur, and that torture occurs even for ordinary crimes and with impunity. We note that in reference to this report, the Immigration Assessment Authority (IAA) concluded that Tamils detained for anything more than a brief period in Sri Lanka would be subjected to serious harm.
2. That is, the applicant had squarely claimed that he would be at risk whilst he was detained for the purpose of investigating his background.
3. The IAA went on as follows:
   1. Returnees charged under I&E Act will only need to return to court when their case is being heard, or if summonsed as a witness in a case against the facilitators or organisers of the people smuggling venture. There is no general requirement to report to police or police stations between hearings. However, DFAT notes that, while the fines issued for fare-paying passengers of people smuggling ventures are often low, the cumulative costs associated with regular court appearances (if required) over protracted lengths of time can be high.
   2. In the case of this applicant, I am not satisfied that the conditions of detention for a brief period at the airport, a fine and the costs associated with regular court appearances, if required, amount to serious harm. In addition, the information before me does not indicate that I&E Act is discriminatory on its terms, that it is applied in a discriminatory manner or that it is selectively enforced. Accordingly, I am not satisfied that any investigation, prosecution and punishment would amount to persecution for the purpose of ss.5H(1) and 5J(1) of the Act.
4. The IAA was satisfied 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 Act and did not meet s 36(2)(a) of the Act.
5. The IAA then proceeded to undertake its complementary protection assessment, and addressed the risk posed to the applicant as a returnee to Sri Lanka following illegal departure, as follows:
   1. I accept the applicant would return to Sri Lanka (whether involuntarily or otherwise) on temporary travel document. I accept he may be detained at the airport for processing on return and questioned. I also accept he may be arrested and charged with departing Sri Lanka illegally and detained briefly at the airport if a magistrate is unavailable, fined and possibly incur costs associated with bail and regular court appearances. I am not satisfied there is a real risk of the death penalty being carried out or of him being arbitrarily deprived of his life or tortured. Further, on the information before me I am not satisfied that there is an intention to inflict pain or suffering that could reasonably be regarded cruel or inhuman in nature, severe pain or suffering, or an intention to cause extreme humiliation. I am not satisfied there is a real risk of significant harm on this basis.
   2. I have otherwise found the applicant does not face a real chance of harm on any or the bases claimed now or in the reasonably foreseeable future. As 'real risk' involves the same standard as 'real chance', I am also not satisfied that the applicant faces a real risk of significant harm on these bases.
6. The IAA concluded that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the applicant would suffer significant harm and that the applicant did not meet s 36(2)(aa) of the Act.
7. The IAA affirmed the decision not to grant the applicant a protection visa.

1. When considering an application to extend time, the Court will ordinary consider a range of factors, such as the length of the delay, the explanation for the applicant's failure to file the application within the permitted time, any prejudice to the respondent, the nature of the application and the merits of the application, and such other matters as may inform the Court as to whether the interests of the administration of justice render it necessary to make the order sought. Where the substantive application has merit, the interests of the administration of justice will ordinarily favour extending time.
2. I address below the merits of the application first, before turning to the other considerations relevant to the extension of time application.
3. As set out above, the applicant's grounds of review were as follows:
   1. The Authority accepted that the Applicant may face brief detention on his arrival but failed to consider whether the prison conditions and the applicant would be degrading and inhuman treatment.

2. The IAA decided without sufficient evidence.

3. As per report, heavy price will be paid on their arrival.

4. The IAA failed to consider whether applicant has the means to pay the penalty.

5. They face long term imprisonment.

1. The applicant's grounds of review were directed to the IAA's consideration of the applicant's claim to complementary protection pursuant to s 36(2)(aa) of the Act. That subsection provides as follows:

(2) A criterion for a protection visa is that the applicant for the visa is:

...

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

...

1. The question which is posed by s 36(2)(aa) of the Act regarding whether there is a "real risk" that a non-citizen will suffer significant harm involves the same standard of satisfaction as is relevant when considering the question of refugee status; namely, whether there is a "real chance" of the relevant feared harm being realised: Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33, per Lander and Gordon JJ at 551 [246]; Besanko and Jagot JJ agreeing at 557 [297]. That concept was discussed at length in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62. A "real chance" is one that is substantial, as distinct from remote. A chance may be a real one, notwithstanding that the probabilities of the feared harm occurring are less than fifty percent.
2. The reference to "degrading and inhuman treatment" in the applicant's grounds calls up that language in s 36(2A)(d) and (e), as follows:

(2A) A non-citizen will suffer significant harm if:

(a) the non-citizen will be arbitrarily deprived of his or her life; or

(b) the death penalty will be carried out on the non-citizen; or

(c) the non-citizen will be subjected to torture; or

(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e) the non-citizen will be subjected to degrading treatment or punishment.

1. Relevant to that subsection are the following definitions in s 5(1) of the Act:

cruel or inhuman treatment or punishment means an act or omission by which:

(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c) that is not inconsistent with Article 7 of the Covenant; or

(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

...

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a) that is not inconsistent with Article 7 of the Covenant; or

(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

1. Critical to both definitions is the element of intention; namely, the intention to cause pain and suffering and the intention to cause extreme humiliation.

Ground 1: The Authority accepted that the Applicant may face brief detention on his arrival but failed to consider whether the prison conditions and the applicant would be degrading and inhuman treatment.

1. At the hearing the applicant was invited to make submissions in relation to this ground. His submission was that if "they" (presumably the Sri Lankan authorities) came to know his background, that would cause a severe problem for him.
2. So far as the applicant's argument was advanced on the basis that he had a history that would excite the interest of the Sri Lankan authorities because there had been a warrant issued for his arrest in 2013 that argument may not be accepted. The IAA declined to accept that the document, headed "Message Form", that the applicant had contended was an arrest warrant, was genuine. The IAA's rejection of the document was based upon its analysis of its language, the logic of the demand in the document that the applicant attend for an interview about his father's activities when the applicant was only a child when his father disappeared, and the fact that it had only been provided by the applicant at the protection visa interview (and not earlier). The discussion of those matters appears at [27] - [29] of the IAA's reasons. The applicant did not demonstrate how the conclusion that the document was not genuine was affected by any error.
3. The IAA was otherwise not persuaded that the Sri Lankan authorities would have any interest in him by reason of his background; whether because of his involvement with, or support of the TNA (at [32]), his Tamil ethnicity and period of residence in Jaffna (at [34]), or due to his father's arrest and subsequent disappearance and the involvement of members of his father's family in the LTTE (at [39]). Those findings addressed whether the applicant had a profile that would make him the likely target of adverse interest.
4. The applicant raised that the fact that he had been charged with an offence in Australia meant that he would be the focus of interest by the authorities in Sri Lanka. As those events were subsequent to the IAA's decision, they do not inform the question whether the IAA performed its function in a manner consistent with its statutory authority.
5. So far as this ground is articulated in the application concerning the brief detention the IAA accepted would occur on the applicant's return, it cannot be sustained, as the IAA did in fact address the question whether the applicant would be held in conditions that were inhuman or degrading.
6. At [46], the IAA dealt with the conditions in which the applicant would be initially detained at the airport upon his arrival in Sri Lanka. The IAA made a finding about the likely period of initial detention (at the airport) and the conditions of that detention. The IAA made a finding that the detention would be brief and would not involve any mistreatment.
7. The IAA then went on (at [48]) to conclude that returnees may remain in police custody at the airport for up to 24 hours, or where a magistrate was not available, for up to two days in an airport holding cell. The IAA noted the 2019 DFAT report that it was not aware of any mistreatment of returnees during that process.
8. The IAA appeared to have accepted that part of the DFAT report as in [52] it accepted that the conditions of detention at the airport did not amount to "serious harm". That was a reference to subsection 5J(4)(b) of the Act, which conditions the concept "well-founded fear of persecution" by a requirement that the persecution the subject of the fear must involve "serious harm". The term "serious harm" is the subject of s 5J(5) of the Act, which sets out a number of instances of serious harm, including (a) "a threat to the person's life or liberty" and (c) "significant physical ill-treatment of the person".
9. The IAA went on, at [61] of its reasons, to consider the complementary protection criteria. After specifically referring to the prospect of the applicant being arrested and detained briefly at the airport if a magistrate was unavailable, the IAA concluded "on the information before me I am not satisfied that there is an intention to inflict pain or suffering that could reasonably be regarded cruel or inhuman in nature, severe pain or suffering, or an intention to cause extreme humiliation. I am not satisfied there is a real risk of significant harm on this basis." That language called up the examples of "serious harm" in s 36(2A)(d) and (e) of the Act, and the definitions of the phrases "cruel or inhuman treatment or punishment" and "degrading treatment or punishment" in s 5(1) of the Act which are set out above.
10. By the passage above, the IAA addressed the question whether the conditions of detention of the applicant upon his immediate return, and his detention at the airport would be inhuman, or degrading, and thereby constitute significant harm.
11. The IAA did not err in the manner for which the applicant contends.

Ground 2: The IAA decided without sufficient evidence.

1. In his submissions at the hearing, the applicant said that he had not had sufficient time to obtain evidence in support of his application because of the "fast-track review".
2. The applicant said that he suffered difficulty preparing his application as he was suffering very poor mental health marked by a number of symptoms, such as sleep disturbance, hearing voices, feelings he was being followed, breathing difficulties, sweating and fear. He also complained that he had lost documents when he was moving out of his residence.
3. There is no doubt the applicant has suffered terribly. He grew up in a conflict zone and lost his father at an early age. The STARTTS report he produced to the Court reported that he witnessed violence, injuries, and death as a child. He endured what must have been a dangerous and difficult journey to Australia, following which his capacity to make an application for protection was not certain for four years following his arrival. He sought to navigate that process with limited capacity in English. The correspondence on the Departmental file shows that he had some assistance from the Refugee Advice and Casework Service, but that organisation made clear that their ability to assist was limited due to the demand for their services. The Court has little doubt that the applicant found the process of applying for the visa and attempting to substantiate his claims in those circumstances a difficult one.
4. However, the Court does not accept either that the applicant did not have an ample opportunity to obtain the evidence to support his claim, or that the IAA fell into jurisdictional error by the conduct of its fast-track review. A period of nearly three years passed between the lodgement of the applicant's visa application in March 2017 and his protection visa interview on 23 January 2020. That period afforded the applicant a substantial amount of time to obtain evidence relevant to his claims. The applicant did not identify any other relevant evidence that he could have obtained had he been given further time to obtain it, let alone evidence that might have satisfied the stringent requirements concerning the receipt of "new information" in s 473DC of the Act (as then in effect). As set out above, the "fast track review" arrangements in then pt 7AA of the Act provided for the IAA conduct its review "on the papers" (that is, on the basis of all the material that was before the Minister's delegate at first instance), with a strictly limited capacity to accept or request new information from an applicant, or to interview the applicant.
5. As explained to the applicant at the hearing, the Court is not empowered to consider for itself his visa application and grant the visa, or, to make an order remitting his matter to be reconsidered because of the difficulties he suffered. Rather, the Court's role is limited to the identification and correction of jurisdictional error. The applicant did not identify an error of that type by his submissions relating to this ground.
6. The Court is not satisfied that this ground is made out.

**Ground 3: As per report, heavy price will be paid on their arrival

Ground 4: The IAA failed to consider whether applicant has the means to pay the penalty.

1. It is appropriate to consider these grounds together. In support of these grounds the applicant submitted at the hearing that if he went back (to Sri Lanka) he would have to pay a big fine and if he did not, he would be put in jail.
2. The applicant's representative had made a submission to the Department about the likely treatment of the applicant upon his return. That submission included the following (which was set out at [61] above but is repeated here for convenience:

iii. Treatment of Failed Asylum Seekers

1. We submit the risk of harm faced by the Applicant if he were to return to Sri Lanka is heightened by his profile as a failed asylum seeker.

2. The Applicant departed Sri Lanka by boat without the use of official documentation. As his passport would have never been properly recorded, he will be viewed as someone who departed Sri Lanka illegally. The penalties for leaving Sri Lanka illegally include a 5-year prison term and fines. As reported by DFAT, 'returnees who depart Sri Lanka irregularly by boat are considered to have committed an offence under the Immigrants and Emigrants Act (the I&E Act).'

3. The Applicant is likely to cause significant suspicion upon his return to Sri Lanka. We submit that as a result of the procedures adopted by the Sri Lankan authorities with respect to failed asylum seekers, the Applicant will attract the attention of the Sri Lankan authorities immediately upon his return to Sri Lanka, and that it is likely he will also be contacted by the military in his home area.

4. Country information indicates that the Applicant will be detained and interrogated on return and that his background will be thoroughly investigated. There is a real chance that he will suffer serious harm during the process of being questioned or while in the custody of the Sri Lankan authorities.

5. The Special Rapporteur on torture and other cruel, inhuman and degrading treatment noted that in Sri Lanka, suspects are often detained without being registered or brought before a judge for long periods of time, enabling torture to occur, and that torture occurs even for ordinary crimes and with impunity. We note that in reference to this report, the Immigration Assessment Authority (IAA) concluded that Tamils detained for anything more than a brief period in Sri Lanka would be subjected to serious harm.

6. February 2018 media releases by the Tamil Refugee Council in Australia indicate that Tamils returning to Sri Lanka have been detained for weeks or months and endured intensive interrogation, and that a Tamil man recently deported by the Australian government has been subjected to harassment and intimidation by the Sri Lankan authorities. His family members have also been subjected to harassment, including his mother and wife, with visits to their residence. According to the November 2017 Associated Press report, returned asylum seekers have been brutally tortured. Human Rights Watch has also expressed concern over the torture of returned asylum seekers in Sri Lanka, and the use of the PTA to enable security forces to detain and torture returned asylum seekers with impunity.

(Footnotes omitted)

1. The applicant's representative did not contend that a large fine would be imposed on the applicant, and that the applicant would be unable to pay such fine. Rather, the applicant's representative contended that when detained for interrogation as a failed asylum seeker, he would be exposed to a risk of torture or extended detention whilst in the custody of the Sri Lankan authorities. The representative's submission was that even those detained for ordinary crimes were at such risk. That is, the applicant's submission was that anyone held in the custody of the Sri Lankan authorities was exposed to the risk of inhuman or degrading treatment.
2. The IAA (at [43]) accepted [86] of the applicant's submission above that the Sri Lankan authorities would know or infer that he had made claims for protection in Australia. As to the balance of the submissions, the IAA said as follows (at [43]):

I have had regard to the former representative's contentions and country information provided in support of the applicant's return as a failed asylum seeker however I note that apart from the contemporary 2019 DFAT report the country information provided and relied on pre-dates the 2019 DFAT report by at least two years, and as such are of very limited value.

1. The IAA accepted (at [45]) that the applicant "may be detained at the airport" for processing upon his return to Sri Lanka (referred to hereafter as processing detention). I do not read the use of the word "may" in that context as indicating any real doubt that upon the applicant's immediate arrival in Sri Lanka that he would be detained. In [44], the IAA had referred, without any demurral, to a statement in the 2019 DFAT report that returnees on temporary documents are subject to an investigative process to confirm identity which involves interviewing the passenger, contacting police in the person's hometown, neighbours and family, and checking criminal and court records.
2. However, the IAA was satisfied (at [46]), based on the DFAT report, that the processing detention would be brief, not exceeding several hours. The IAA was satisfied that the information before it indicated that the airport processing of the applicant would not be done in a discriminatory fashion and did not involve a real chance of mistreatment.
3. The IAA was not satisfied (at [45]) that the Sri Lankan authorities would impute him with any particular profile during processing, on the basis that the applicant had no outstanding court orders, arrest warrants, or criminal or terrorist background and the absence of information to indicate that unsuccessful asylum seekers were imputed with an adverse profile or political opinion. The IAA's earlier rejection of the "arrest warrant", and its conclusions about the claims the applicant had made to be of interest to the authorities due to his father's involvement with the LTTE, and due to his involvement with the TNA prior to his departure, provided a foundation for the IAA's conclusion (in [45]) about the absence of any relevant background.
4. The IAA went on to accept (at [48]) that the applicant may be charged under the I & E Act. Again, I do not read the use of the word "may" in that context as indicating any real doubt that upon the applicant's immediate arrival in Sri Lanka that he would be detained. In the following sentence, the IAA refers to DFAT's understanding that where illegal departure is suspected, returnees are arrested and charged at the airport. Nothing else in the IAA's reasons suggests any reason why the authorities would not suspect the applicant of illegal departure upon his return, and, charge him accordingly on the basis of that suspicion.
5. The IAA then goes on (at [48]) to describe a period of detention further to the processing detention (referred to hereafter as post-charge detention). In the post-charge period, the police take photographs, fingerprints, and statements and enquire about the detainee's activities abroad. The IAA again referred to DFAT's understanding that returnees can remain in police custody at the airport for up to 24 hours pending transfer to a "Magistrate's Court". That period may be as long as two days where a magistrate is not available, such as weekends or public holidays. The IAA refers, apparently with approval, to DFAT reporting that it is unaware of mistreatment of returnees during this process.
6. The IAA later found, at [52], that it was not satisfied that the conditions of detention for a brief period at the airport amounted to "serious harm". That was a reference to the explication of the concept of "persecution" in s 5J(4) and (5) of the Act.
7. At [49], the IAA considered evidence concerning the penalties for illegal departure. It apparently accepted a statement by the Sri Lankan Attorney Generals's Department that no fare-paying passengers had received custodial sentences, as at the end of that paragraph the IAA was not satisfied that there was a real chance the applicant would be given a custodial sentence.
8. At [50], the IAA states:

If the applicant pleads guilty to departing Sri Lanka illegally, he will be required to pay a fine, which can be paid in instalments, and will subsequently be able to go free.

1. The import of that observation is this: the IAA accepted that the applicant's release from detention would be conditional upon the payment of the fine. That is, that the applicant would remain in detention until such time as he paid the fine. That was not the detention at the airport pending transfer to the court that had been the subject of the IAA's findings discussed above.
2. At [51], the IAA refers again to DFAT (again with apparent approval) as noting that "the fines issued for fare-paying passengers of people smuggling ventures are often low...". That statement does not quantify what it regards as a "low" fine. Nor does it quantify what it means by "often". That is, the IAA did not identify how frequently the fine issued to a person who left Sri Lanka illegally is low. If the fines issued for illegal departure were exclusively or overwhelmingly low, or even low in the majority of cases, the IAA's reasons might be expected to include such language. The absence of such language, and the use of the vaguer term "often" indicates that the IAA was unable to satisfy itself that a low fine was issued in most cases.
3. Although the IAA's findings indicated some likelihood that the applicant would be given a low fine, they were insufficient to foreclose there being a substantial and not remote chance that the applicant would be given a fine that was not "low". In that event, if he were unable to pay that fine immediately, he would be held in detention pending payment of such fine. The quantum of the fine in that event would affect the length of the detention as it could take the applicant and/or his family longer to raise a larger amount of money to pay off the fine. That is the detention of the applicant pending payment of a fine may be extended, and he may be subject to the same risk of ill-treatment during such detention as he had contended that even those who committed ordinary crimes were subject.
4. The IAA ultimately addressed the complementary protection criterion at [61] of its reasons as follows:

I accept the applicant would return to Sri Lanka (whether involuntarily or otherwise) on temporary travel document. I accept he may be detained at the airport for processing on return and questioned. I also accept he may be arrested and charged with departing Sri Lanka illegally and detained briefly at the airport if a magistrate is unavailable, fined and possibly incur costs associated with bail and regular court appearances. I am not satisfied there is a real risk of the death penalty being carried out or of him being arbitrarily deprived of his life or tortured. Further, on the information before me I am not satisfied that there is an intention to inflict pain or suffering that could reasonably be regarded cruel or inhuman in nature, severe pain or suffering, or an intention to cause extreme humiliation. I am not satisfied there is a real risk of significant harm on this basis.

1. Although the IAA addressed the question whether the applicant would be subjected to cruel, inhuman or degrading treatment, that conclusion was reached by reference to findings that were limited to the circumstances of the detention at the airport prior to being brought before a magistrate. The IAA did not address or make any finding about the applicant's claims that there was a general risk of ill-treatment of persons detained by the Sri Lankan authorities, when the IAA's findings left open, at a level of likelihood consistent with a real chance, the prospect of the applicant being held in detention pending payment of a fine.
2. Although the IAA had observed at [43] that the country information provided by the applicant's representatives was of "very limited value", it did not make any specific findings about the conditions of detention in Sri Lanka or the risks to persons held in such detention. In failing to address the question whether the risk that the applicant would be kept in detention because he could not pay any fine imposed upon him, or because it would take time to raise the money to do so was a real one, and in failing to consider whether the applicant would suffer significant harm in any such detention, the IAA erred. The error resided in its failure to deal with an integer of the claim was that clearly raised on the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58] - [63].

1. The period of extension sought by the applicant is a long one; 567 days, when the time specified for the making of the application is 35 days. In such a case, an applicant must show an exceptional case in order for time to be extended: Vella v Minister for Immigration and Border Protection (2015) 326 ALR 391; [2015] HCA 42.
2. I am satisfied that the applicant has such a case for the following reasons.
3. I am satisfied that the IAA's review was affected by jurisdictional error. I have also had regard, consistent with MZABP (referred to above) to the nature of the visa sought by the applicant, which is one in which he has made claims to fear significant harm if returned to Sri Lanka. It follows from my conclusion about error that the IAA failed to properly consider his claims to be at risk of harm upon his return. I also have regard to the evidence that he has suffered post-traumatic stress disorder. In the remarks on the applicant's sentence in 2021, the presiding judge was satisfied that the social stressors the applicant was suffering (which included his ineligibility for social security benefits) at the time of his offending (in October and November 2021, just prior to lodging his application) exacerbated his condition. I am satisfied that the applicant's post-traumatic stress disorder, aggravated by social stressors, would have made it more difficult for him to make the present application, although I accept the Minister's submission that the applicant has not explained his claims that COVID and a lack of job and Centrelink benefits were to account for his delay.
4. The delay in making the application has not resulted in any particular prejudice to the first respondent. The mere absence of such prejudice does not, of itself, warrant granting the extension of time sought, however, I note the absence of any such prejudice to weigh against the factors referred to above.
5. I am satisfied in the circumstances that it is necessary in the interests of the administration of justice to make an order extending the time for the making of the application and will so order.

1. I will make orders extending the time for making the originating application, and orders setting aside the IAA's decision and remitting the matter for reconsideration by the Administrative Review Tribunal.
2. I will hear the parties as to any further orders that are appropriate in the circumstances.

I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Doust.