GOM18 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1862

1. This is an Application for judicial review of a decision of the Immigration Assessment Authority (the Authority) dated 5 October 2018, affirming a decision of a delegate of the first respondent (the delegate) to refuse to grant the applicant a Safe Haven Enterprise (Class XE) Subclass 790 visa (the visa).
2. The applicant requires an Extension of Time to seek judicial review pursuant to s 477(2) of the Migration Act 1958 (Cth) (the Act).
3. The Court had regard to both Applications on the date of hearing.
4. For the reasons set out below, the Application for an Extension of Time is refused. Accordingly, the judicial review Application is dismissed.

1. The applicant is a citizen of Sri Lanka.
2. The applicant arrived in Australia as an unauthorised maritime arrival on 17 September 2012.
3. On 25 November 2015, the applicant applied for the visa. In his application, the applicant claimed to be a Tamil Christian and to fear harm due to imputed Liberation Tigers of Tamil Eelam (LTTE) involvement and support as a result of his sister's involvement with the LTTE.
4. On 15 January 2018, the delegate refused to grant the applicant the visa on the basis that they were not satisfied that s 36(2) of the Act were met.
5. On 19 January 2018, the delegate's decision was referred to the Authority for merits review.
6. On 5 October 2018, the Authority affirmed the delegate's decision not to grant the applicant the visa.
7. The applicant now seeks judicial review of the Authority's decision of 5 October 2018. The Application however was lodged on 17 December 2018, well outside of the specified 35-day time frame. Accordingly, the first issue is whether an extension of time should be granted.

1. In SZTES v Minister for Immigration and Border Protection [2015] FCA 719 the following matters were held to be relevant as to whether an extension of time should be granted:

(a) the extent of the delay;

(b) the explanation for the delay;

(c) prejudice to the respondent due to the delay; and

(d) the merits of the proposed application.

1. The Court may extend the 35-day period if it is satisfied that it is necessary in the interests of the administration of justice to make an Order extending time for filing of the Application.
2. The decision to grant an extension of time is a discretionary one: DZAAD v Department of Immigration and Citizenship [2013] FCA 204 at [28]:

The Application is brought under r 36.05 of the Federal Court Rules 2011. As the Minister has submitted, r 36.05 confers upon a court a broad discretion whether or not to grant an extension of time. The considerations generally relevant in determining whether an extension of time should be granted are well known. They include the length of the delay, whether the applicant has provided an acceptable explanation for the delay, whether there is any prejudice to the respondents and the merits of the appeal if an extension is granted (Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344 at 348-349 (per Wilcox J); Jess v Scott [1986] FCA 365; (1986) 12 FCR 187 (per Lockhart, Sheppard and Burchett JJ); Parker v The Queen [2002] FCAFC 133 at [6] (per Spender, O'Loughlin and Dowsett JJ); Peck v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 810 at [16]- [27] (per Foster J); SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16]- [25] (per Cowdroy J)).

1. To the above, the Court would add that the greater the delay the more persuasive the explanation for the delay has to be. In considering whether to grant an extension of time, there are no mandatory relevant considerations: Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (Tu'uta Katoa) at [12]:

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.

1. The Application for judicial review and an Extension of Time was filed on 17 December 2018, some 73 days outside of the 35-day time frame prescribed by s 477(1) of the Act. This is a moderate period of time which, in and of itself, mitigates against an extension being granted. As such, the reasons for the delay will need to be persuasive.
2. The applicant relies upon the following eleven matters in relation to the delay:
   1. The Second Respondent's decision was made on 5 October 2018.
   2. I did not file an application for judicial review of the Second Respondent's decision within the prescribed time period because the Second Respondent's decision notification was not sent to my home address.
   3. On 3 December 2018 I received a phone call from a private number.
   4. The speaker identified himself as a person working for the First Respondent. This person said words to the effect that I no longer held a valid visa.
   5. I responded and said words to the effect that I was waiting for the Second Respondent to make a decision on my visa application.
   6. This person gave me a number (1800 205 219) on which I could contact the Second Respondent.
   7. On the same day, I called 1800 205 219 and spoke to a person who identified himself as a staff of the Second Respondent.
   8. This person notified me that the Second Respondent affirmed the decision of the First Respondent's delegate on 5 October 2018.
   9. Also, this person said words to the effect that the Second Respondent decision was sent to my email address and not my home address because the First Respondent did not have my contact address on file.
   10. I don't have access to the email address and at all times I had given my contact address to the First Respondent and the Second Respondent.
   11. The Second Respondent's decision was sent to my home address on 4 December 2018.
3. The applicant claimed that the delay was occasioned by a number of factors as set out above. He conceded at the hearing that he had given an email address for the purposes of contact by the Authority. I am satisfied that the Authority acted properly by sending its decision via email. The applicant failed to regularly access his email. There was no requirement for the Authority to send a hard copy of its decision via post to the applicant. I do not accept the explanation as being persuasive. Again, this mitigates against leave being granted.
4. The first respondent's position is that the factors in this case tend against granting an extension of time. The first respondent submits that there is a public interest in the finality of public decision-making: Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 49; even if the length of delay is accepted as moderate and there is no specific prejudice to the first respondent if time were extended. The first respondent further noted that the applicant has not adequately explained the delay.
5. I accept there is no real prejudice to the first respondent other than the need for these types of matters to be finalised. I consider this factor to be neutral.
6. The final consideration for the grant of an extension of time is the merits of the proposed application. This is considered below.

1. At [3] of the decision, the Authority considered the material before it, given by the Secretary under s473CB of the Act. The Authority further considered submissions provided by the applicant on 15 February 2018 and noted that they contained argument rather than new information. It therefore had regard to them [4]. However, the Authority noted that the submissions also included a number of new claims [4].
2. At [7], the Authority considered the applicant's new claim that Sri Lankan authorities were aware of his personal contact with his sister, who was in the LTTE, and as a result the applicant feared arrest on return to Sri Lanka. The Authority noted that the applicant did not refer to this claim during the SHEV interview, despite ample opportunity to do so, and accordingly was not satisfied that there were exceptional circumstances to justify the consideration of this claim.
3. At [8], the Authority considered the applicant's new claim that an informant had notified the applicant's father that his sister was being held in an army detention camp and demanded money for her release. The applicant further claimed his father was arrested by the Criminal Investigation Division (CID), his mother was questioned by the CID and threats were made that the applicant's family would be killed if they attempted to locate the applicant's sister.
4. The Authority noted a distinct lack of details in the applicant's submissions regarding these incidents, particularly the date on which they occurred and how the applicant he learned of these incidents [8]. The Authority considered the applicant fabricated this claim to support his visa application and therefore it was not satisfied the information was credible due to the lack of corroborative evidence and coincidental timing.
5. Accordingly, the Authority was not satisfied s 473DD(b) of the Act was met in relation to these new claims [8].
6. The applicant's claims for protection are summarised at [12] as follows:
   • He is a citizen of Sri Lanka, a Tamil, and a Christian, who was born in Jaffna District in the Northern Province of Sri Lanka.
   • His sister was a leader of one of the LTTE regiments, and because he was the only able­ bodied male in the family he was targeted by authorities for persecution. His aunty told him his sister was killed while fighting for the LTTE in the final war in 2009.
   • In about the beginning of 2009 he was approached by the Sri Lankan Navy (SLN) when he came home late from fishing. They insisted he was assisting the LTTE and punished him.
   • In 2010 the SLN were looking for him because they were suspicious he was an LTTE member. The CID told him to go to their camp for enquiries. At the camp he was accused of assisting the LTTE, and his sister was accused of assisting the LTTE. He was interrogated, beaten and tortured. He was burned with a hot metal pole, leaving scars on his arms and lower left leg.
   • In June 2012 the CID came to his home looking for him because his sister was involved with the LTTE. He was not home at the time and they told his mother he was to report to them when he returned home. He went to a relative's house in Vanni, and while he was there several people came looking for him at his home.
   • He left Sri Lanka because his life was in danger from Sri Lankan authorities because of his sister's involvement with the LTTE, and being imputed with that political opinion.
   • If he returns to Sri Lanka, he would be at real risk of facing serious harm by agencies of the government like the CID and the Sri Lankan Army (SLA), because his sister was in the LTTE, and because anyone who has contact with the LTTE could face persecution from Sri Lankan authorities.
   • In 2013 the CID came looking for him once, and his family received over 20 threatening phone calls in which his mother was told that if he returns to Sri Lanka, she will not see him again because they will kill him.
   • His family told him that when his cousin visited his family home in late 2013 the CID contacted the family and asked whether he had returned home. After this incident a man on a motorcycle visited his family and asked where he was. The man threatened that if he returned home his family would not see him again.
7. At [22], the Authority accepted that the applicant may have been hesitant to fully disclose his claims during the initial interview with the Department and made no adverse inferences as a result. However, the Authority found it "highly significant" that the applicant did not detail his sister's role as a leader in the LTTE until his 2015 statement, despite reportedly being aware of her role since at least 2004. The Authority found it implausible for the applicant's sister to be in such an important position in the LTTE at her young age. The Authority was prepared to accept that the applicant's sister was an LTTE combatant and had been missing since the end of the conflict in 2009. However, the Authority did not accept she was a leader or a high profile LTTE member and found the applicant had "embellished his later evidence regarding his sister's role".
8. At [26], the Authority accepted that the applicant worked as a fisherman and found it plausible that he provided fuel to the LTTE during 2005 and 2012. Further, the Authority accepted that the applicant suffered adverse attention from Sri Lankan authorities in 2010, whilst living in the previously LTTE-controlled area and working as a fisherman. However, the Authority found it implausible for that the applicant was the only family member of interest to authorities because of his sister's involvement with the LTTE and did not accept the applicant was targeted from 2012 onwards.
9. The applicant claimed the CID had continued interest in him even after leaving Sri Lanka, referring to incidents where his family were questioned about his whereabouts [28]. The Authority found it implausible that the applicant's brothers or father would not be of similar interest to the Sri Lankan authorities, given his primary claim relates to his sister's involvement in LTTE [29]. Further, the Authority considered that the authorities had ample opportunity to detain and question the applicant had they wished to [29].
10. The applicant further claimed to fear harm as a Tamil, and due to an imputed political opinion as a supporter of the LTTE [35]. With reference to country information, the Authority at [36] - [38] considered that there was no longer a systemic practice of detaining those suspected of any involvement with the LTTE in Sri Lanka, and did not accept the applicant had a high-risk profile of being detained [39].
11. At [40], the Authority did not accept the applicant would be at risk of harm from Sri Lankan authorities as a Tamil fisherman from the North.
12. In light of the reasoning above and considering the circumstances as a whole, the Tribunal concluded at [41], that there was no real chance the applicant would be at risk of harm on return to Sri Lanka.
13. The Authority also considered country information regarding returnees and illegal departees, but was not satisfied that the treatment the Applicant would receive would amount to harm or persecution [47].
14. Accordingly, at [48], the Authority concluded that the applicant did not meet the requirements of s 36(2)(a) of the Act.
15. The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, there was a real risk that the applicant would suffer significant harm [49] - [53]. Therefore, the Authority found that the applicant did not meet s 36(2)(aa) [54].
16. Accordingly, the Authority affirmed the decision to not grant the applicant the visa.

1. The applicant advances two grounds of judicial review contained in an Application filed with the Court on 17 December 2018. They are as follows:
   1. Jurisdictional Error. The Authority failed to consider the new information in accordance with law and adopted an unduly narrow construction on s 473DD of the Migration Act 1958, thereby failing to exercise jurisdiction, leading to jurisdictional error.

Particulars:

1. At paragraph 7 of the Decision Record the Tribunal referred to new claims and new information that were not before the delegate. With respect to the Applicant's claim that the Authorities were aware himself and his sister, who was in the LTTE had personal contact with each other, through informants who are rehabilitated former LTTE militants, the Authority found that (i) the Applicant did not refer to informants during the interview; and (ii) the claim was a recent invention to support his claims for protection and on that basis was not satisfied that there were exceptional circumstances to justify consideration of the claim.

2. At paragraph 8 of the Decision Record the Tribunal referred to a new claim relating to present problems for the Applicant's family in Sri Lanka. The Authority found that (i) the Applicant had not specified the particular date any of the incidents occurred or how and when he learnt about them and therefore he had not satisfied the Authority that the new information could not have been provided prior to the delegate's decision (ii) the timing of the events is too coincidental to be believed; and (iii) the Applicant has fabricated the new claim to support his protection visa application and had not satisfied the Authority that the new information is credible personal information. Subsequently, the Authority concluded that s 473DD(b) had not been met and as such the Authority could not consider the new claim.

2. Jurisdictional Error. The Authority failed to consider certain integers of the Applicant's claims which if accepted might establish a well-founded fear of persecution for a convention reason, amounting to a failure by the Authority to exercise its jurisdiction, leading to jurisdictional error.

Particulars:

1. In Paragraph 4 of his supplementary statement dated 15 November 2015, the Applicant recounts his experience with the CID in 2010. He claimed that the CID came to his house and asked him to go to camp because they needed to make enquiries. At the camp he was accused of helping the LTTE and assisting his sister, he was beaten. Subsequently he was told to come in whenever the called and to ensure that (i) he couldn't hide; and (ii) they can identify him, they put a hot metal pole on him leaving scars on both of his harms and lower left leg (the 2010 CID Incident).
2. In paragraph 12 and 23 of the Decision Record, the Authority mentions the 2010 CID Incident and (i) accepted that the Applicant suffered adverse attention from Sri Lankan authorities in 2010 (Paragraph 26); and (ii) considered it entirely implausible that the applicant was the only family member of interest to authorities as a result of his sister's involvement with the LTTE
3. In paragraph 14 of the Statutory Declaration dated 8 September 2013, the Applicant noted that he would be at risk of serious harm by the CID and the SLA because his sister was in the LTTE and because of his imputed political belief. Subsequently in paragraph 15 he stated "In the minds of Sri Lankan officials anyone who had contact with the LTTE could face persecution from state authorities. The extent of LTTE association is not correlated with the likelihood of arrest and torture so I am still vulnerable to attacks and intimidation from the Sri Lankan authorities". Also, in paragraph 16 he reiterated that he would be harmed by the authorities because in the mindset of the Sri Lankan authorities, the LTTE is a terrorist organisation and as a Tamil, he has been imputed with political belief.

THE APPLICANT'S SUBMISSIONS: PROPOSED GROUNDS OF JUDICIAL REVIEW

1. The applicant appeared before the Court unrepresented. He was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books and that the respondent's written submissions had been translated to him. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wish to.
2. At the commencement of the hearing, the Court explained was undertaking judicial review, not merits review, and the difference between the two types of review. The Court explained the matters it was required to consider in an extension of time application. The Court also explained the procedure by which the hearing would be undertaken.
3. Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case. The applicant told the Court in relation to his proposed grounds of judicial review that these had been prepared by a lawyer and he was not able to speak to them. He confirmed he had been subject to torture by Sri Lankan authorities and that his sister had disappeared.
4. At the conclusion of the respondent's oral submissions, the applicant was asked if you wish to state anything in reply. He answered "No".

THE FIRST RESPONDENT'S SUBMISSIONS: PROPOSED GROUNDS OF JUDICIAL REVIEW

1. By Ground One, the applicant alleges that the Authority took an unduly narrow construction of s 473DD of the Act in relation to its consideration of new information at paragraphs [7] and [8]. The first respondent submits that the Authority undertook the assessment of s 473DD of the Act as required by the principles from AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494 (AUS17).
2. In relation to paragraph [7], the applicant claimed that Sri Lankan authorities were aware that the applicant had personal contact with his sister via "rehabilitated former LTTE militants" and that he feared arrest on return to Sri Lanka as a result. The Authority relevantly reasoned that:

(a) the applicant had not provided details regarding when the authorities became aware of the contact with his sister;

(b) the applicant had not stated how he came to know about the informants;

(c) the applicant had given evidence at his SHEV interview that he had met his sister once in 2004, and the last time he spoke to her on the phone was in 2008 or 2009; and

(d) having had personal contact with his sister through informants, the applicant did not refer to the informants during the interview despite having ample opportunity to do so.

1. Accordingly, the Authority considered the new claim was a "recent invention" to support his claims for protection, and that there were no exceptional circumstances to justify consideration of the claim. Although the Authority did not expressly refer to s 473DD(b)(ii) of the Act, it clearly considered whether the claims were credible personal information for the purpose of the subclause. The Authority's finding of "recent invention" connotes that the claim was not "credible" and thus failed s 473DD(b)(ii).
2. In relation to paragraph [8], the applicant claims present problems for his family members in Sri Lanka, including his father being held in an army detention camp, demands by the CID for money in return for the release of his sister, the applicant's mother being questioned, and general threats against the family if they tried to locate his sister. The Authority considered whether the information could have been provided prior to the delegate's decision, noting the applicant claims that these events "took place very recently after the interview with the officer". The Authority noted that the applicant had not specified any particular date, or even any approximate date when any of the incidents occurred, or how and when he learned about them, and accordingly was not satisfied the claim could not have been provided earlier. The Authority's reasons concerning the lack of detail in the submission, lack of corroborative evidence and timing of the events each went to the issue of whether s 473DD(b)(ii) of the Act was satisfied.
3. Whilst it can be accepted that the Authority was required to assess whether the information was "capable of being believed at the deliberative stage" of its review as per CSR16 v Minister for Immigration & Border Protection [2018] FCA 474 at [37], [41]-[42]) (CSR16), it plainly did consider whether the information was "capable of being believed", before considering it could not be believed due to the improbability of the claim. Even if the Court were to find error against the CSR16 standard, such error was immaterial in the sense that it could not have resulted in a different outcome on the review, as the Authority would ultimately have found, as it did, that the claim had been fabricated to support his protection visa application.
4. By Ground Two, the applicant alleges that the Authority did not consider "integers" of the applicant's claims. Specifically, the applicant claimed the Authority failed to consider an incident in 2010 in which the CID took the applicant to a camp, accused him of assisting the LTTE and his sister, beat him and burned him with a hot metal pole; and further failed to consider that the applicant would face harm due to imputed political belief as a supporter of the LTTE due to his contact with the LTTE and because his sister was in the LTTE.
5. The Authority considered the applicant's claimed harm due to imputed political belief at [29], [35] - [41], and the events in 2010 at [25] - [26] and [29]. Regarding the 2010 incident, the Authority accepted that the applicant had suffered the harm he claimed but found it to be part of the "routine, but troubling, treatment of Tamils at that time" at [26]. In relation to the applicant's imputed political belief, the Authority found that the applicant was not subsequently of interest to the authorities at [29], and would not be of interest upon return, either by reason of his profile or otherwise because for a period of 18 months after the cessation of the war, the Sri Lankan authorities showed no interest in him at [29].

CONSIDERATION: MERITS OF THE PROPOSED GROUNDS OF JUDICIAL REVIEW

1. While generally it is only necessary to consider the grounds of judicial review at an impressionistic level, on some occasions this will require consideration at a somewhat deeper level due to the nature of the grounds advanced.
2. Section 473DD of the Act (now repealed) placed strict limits on the Authority's ability to accept new information. AUS17 made it clear that in considering whether or not to accept new information, the provisions of s 473DD(b)(i) and (ii) were required to be considered first before considering if there were exceptional circumstances to warrant the acceptance of the new information.
3. Whilst it is preferable that any consideration pursuant to s 473DD be explicit in its processes and the steps in the process, as found by Perry J in BTK19 and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 658 at [56], a 'commonsense and realistic approach should be undertaken to understand the reasons as a whole to see what the Tribunal was saying'.
4. The Court understands that, provided it is clear that the process outlined in AUS17 has been followed, this will be sufficient, even in the absence of clear references to the section and the two-stage process prior to coming to a conclusion.
5. The applicant's first complaint relates to the reasoning in paragraph [7]. This relates to new claims the applicant had access to informants, who were rehabilitated LTTE, that authorities were aware that the applicant had been in contact with his sister who was in the LTTE. The Authority found this was a recent invention to support his claim for protection and found there were not exceptional circumstances such as to consider this new claim.
6. The reasoning process clearly indicates that the Authority found there were no good reasons as to why the applicant could not have raised the issue of informants before the delegate in his SHEV interview: s 473DD(b)(i); and further the Authority did not consider the information credible as it found it to be a recent invention: s473DD(b)(ii). After considering these two matters, the Authority determined that there were not exceptional circumstances to justify considering the claim: s473DD(a). This reasoning process follows the path required by the High Court in AUS17. No jurisdictional error is apparent.
7. The second complaint under Ground One relates to paragraph [8] of the Authority's decision. This relates to a new claim that the applicant's father was arrested and threats made in relation to him if the applicant was not surrendered to authorities. The Authority noted the applicant had not specified a date that these events occurred, but that they took place 'very recently after the interview with the officer', presumably meaning the applicant's SHEV interview. The Authority noted the interview took place on 19 September 2017 and the delegate's decision is dated 15 January 2016.
8. No date as to when he received that information was provided by the applicant or how and when he learnt about them . The Authority concluded it was not satisfied this information could not have been provided prior to the delegate's decision. The Authority ultimately concluded this claim was fabricated and thus not credible. The Authority determined not to accept this information pursuant to s 473DD(b).
9. Again, there is not specific reference to s 473DD(b)(i) and (ii), however the discussion is present such as to clearly indicate this was the reasoning process. Again, while there is no specific reference to s 473DD(a) as to the lack of exceptional circumstances, the requirements of s 473DD(a) and (b) are cumulative as a result of the use of the word 'and" at the end of s 473DD(a). Thus, if neither of the requirements of s 473DD(b) were met, the Authority was entitled to reject the new information. No jurisdictional error is present. Ground One has no merit
10. Ground Two is a claim the Authority failed to consider certain integers of the applicant's claims. These are particularised as follows:

(a) An incident in 2010 in which the CID took the applicant to a camp, accused him of assisting the LTTE and his sister, beat him, burnt him with a hot metal pole, and

(b) The applicant would face harm due to an imputed political belief as a supporter of the LTTE due to his contact with the LTTE and his sister being a member of the LTTE.

1. I accept the respondent's submissions that these two integers were specifically noted by the Authority at [12] and [23] of the decision record.
2. Further, these claims were comprehensively considered and discussed at [29], [35] - [41] and in relation to the 2010 incident at [25] - [26]. The Authority ultimately found Sri Lankan authorities would no longer have an adverse interest in him due to effluxion of time since the end of the civil war. I am satisfied that the Authority did consider these integers but rejected them for the reasons given. Ground Two has no merit.
3. As the applicant is unrepresented, the Court has perused the relevant Court Books and associated documentation. No other jurisdictional error is apparent.

1. As neither of the grounds of judicial review have any merit, it would be pointless to grant an extension of time. Accordingly, the Application for an Extension of Time is refused and the Application dismissed.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.