FEDERAL COURT OF AUSTRALIA

CYN17 v Minister for Immigration and Border Protection [2018] FCA 1773

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed.

2.    The applicant pay the first respondent's costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The applicant seeks an extension of time to appeal from a decision of the Federal Circuit Court dismissing the applicant's application for judicial review of the decision of the Immigration Assessment Authority (Authority). The Authority affirmed a decision of the delegate of the Minister refusing to grant the applicant a Safe Haven Enterprise protection visa: CYN17 v Minister for Immigration and Border Protection [2018] FCCA 427.

2    The issue for consideration in the context of the potential merits of the appeal is narrow, and is the decision of the Authority to decline to consider a Committee against Torture (CAT) report titled 'Concluding observations on the fifth periodic report of Sri Lanka' adopted by CAT between 7 November and 7 December 2016 (CAT report). The CAT report post-dates the delegate's decision.

Background

3    The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 2 October 2012.

4    In January 2016 the applicant filed the application for the protection visa, and it was refused in October 2016 by a delegate of the Minister.

5    The delegate's decision was automatically referred to the Authority for fast track review under Pt 7AA of the Migration Act 1958 (Cth) (Act). The applicant's migration agent provided a written submission to the Authority dated 18 December 2016 (Submission) in support of the applicant's review, and the Submission attached the CAT report.

6    In June 2017 the Authority having declined to consider the CAT report affirmed the decision of the delegate, and the applicant sought judicial review of the Authority's decision in the Federal Circuit Court.

7    On 20 February 2017 the primary judge dismissed the application, but the applicant did not pursue the appeal process in this Court until 20 March 2018, about seven days after the last date for filing, and so requires an extension of time to appeal.

Principles for extension of time

8    In considering whether to grant an extension of time for an appeal under r 36.03 of the Federal Court Rules 2011 (Cth), the court will be guided by the following factors: the length and explanation for the delay, any prejudice that the respondent might suffer due to delay and the prospects of the case succeeding if an extension were granted. There are many authorities to this effect: see in particular Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349 (Wilcox J); SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] (Flick, Griffiths and Perry JJ). The proposed appeal should have such prospects of success so as not to render the extension of time an exercise in futility: WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [9] (Lee, R D Nicholson and Finkelstein JJ). If an appeal has no prospect of success, an extension of time, even for only a short period, may be refused: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23] (Murphy J).

9    The applicant's explanation for the delay is that he made an error as to the days allowed for commencing an appeal. He was unrepresented at the time. The Minister accepts there is no real prejudice in allowing the extension. However, the Minister opposes the extension and it remains necessary for this Court to consider the merits of the proposed appeal in order to assess whether the extension should be granted.

10    I should add that the applicant was represented before me by counsel and written submissions were provided on the day of the hearing.

11    I am cognisant of the fact that the proposed appeal ground is to be considered in the context of the principles applicable to an extension of time application. This is not the determination of an appeal. However, it is necessary in order to consider whether the appeal ground could be said to have any merit or any reasonable prospect of success to set out in some detail the background to the claim in order to understand the applicant's contentions as to the relevance of the CAT report.

The protection claim in the statutory declaration before the delegate

12    In his statutory declaration dated 1 January 2016 (Statutory Declaration) and provided to the delegate, the applicant relevantly claimed as follows:

What I fear may happen to me if I return to that country and why

18.    The leader of the EDF Praba has police protection in Sri Lanka at the present time. On the 4th of May 2015 members of the Tamil paramilitary group Pilayan had attempted to shoot and kill him. The leader EDF despite being given police protection almost lost his life, in such a situation I do not believe I would be protected from the Tamil paramilitary groups.

19.    As I departed Sri Lanka illegally I believe I could be imprisoned for a long period and if imprisoned I fear being harmed as I am a Tamil.

Who I think may harm/mistreat me in that country and why.

20.    I fear being seriously harmed by the Tamil paramilitary groups that have the support of the government and the Sri Lankan authorities for reasons mentioned above.

Protection claim before the Authority

13    As summarised by the Authority (at [16] of its reasons), the applicant claims to fear harm by reason of his Tamil ethnicity, his political opinions and because he departed Sri Lanka unlawfully.

14    As to fears based on his ethnicity, the applicant says he witnessed harassment of Tamils in his area and had to pass checkpoints regularly and identify himself, but he was not physically harmed. He fears returning to Sri Lanka because the area is not safe for Tamils.

15    In relation to his political claims, the applicant claimed that in 2010 he had worked actively for the United National Party (UNP) presidential candidate Sarath Fonseka, and that he had been a staunch UNP supporter. He claimed that after the presidential election in 2010, members of a Tamil paramilitary group tried to set his house on fire while he was at his friend's house, but while his wife and child were at home.

16    He claimed that a few months later he contested the parliamentary elections as an independent candidate, but early on in his campaign he received a call from a senior member of the Tamil Makkal Viduthalai Pulikal (TMVP)/Karuna group who threatened to shoot him if he continued to canvass for votes.

17    The applicant claimed that in 2012 he was involved in a provincial council election running with a Tamil party called Eeelavar Democratic Front (EDF). The applicant claimed he was again threatened by members of the TMVP/Karuna group. The applicant said he lodged a police complaint.

18    The Authority also referred to the claim (as set out in the Statutory Declaration) that the applicant fears that because he departed Sri Lanka illegally he will be imprisoned for a long period and harmed while in prison because he is a Tamil. His representative advised that bail provisions require that a family member be present and that this will extend any period the applicant spends in prison and that Amnesty International advises that prison conditions in Sri Lanka are harsh.

The Authority's decision

19    The Authority had significant doubts about the plausibility of parts of the applicant's account of events and it was not convinced that his account of events and harm experienced was genuine.

20    The Authority found the applicant, whilst accepting that he had stood as an independent candidate at the 2010 parliamentary elections and as a candidate for the EDF at the 2012 provincial council elections, had a low political profile. The Authority was not convinced that the applicant had a sufficiently significant political profile to have attracted threatening telephone calls from a senior Karuna group/TMVP official (as he claimed). The Authority was not convinced that the applicant was of ongoing adverse interest to the Karuna group or the TMVP after the election.

21    By reference to country information the Authority concluded that the applicant would not be at risk of serious harm in Sri Lanka due to his involvement in the 2010 and 2012 elections because the country information did not support ongoing harassment of people with low profile political involvement.

22    The Authority considered, but rejected, the applicant's claim to have a well-founded fear of harm for reason of his Tamil ethnicity, taking into account country information.

23    It further rejected his claims to be at risk of harm from the TMVP/Pillayan group, taking into account country information that the Pillayan group has lost its power base and there has been a significant improvement in the security situation.

24    It rejected his claims to be at risk for having departed Sri Lanka illegally or as a failed Tamil asylum seeker. This aspect of the claim was dealt with in some detail and is important, because it informs the debate between the parties below as to the conduct addressed by the CAT report. Accordingly, although it is lengthy, I include it:

[42]    I accept that the applicant departed Sri Lanka illegally and has claimed asylum. Penalties for persons who leave Sri Lanka illegally include imprisonment of up to five years and a fine of up to 200,000 Sri Lankan rupees (around AUD 2,000). In practice, penalties are applied to such persons on a discretionary basis and are almost always a fine.

[43]    For returnees travelling on temporary travel documents, such as the applicant would, an investigative process to confirm identity is conducted on arrival and may take several hours to complete. As involuntary returnees are processed en masse further delays may occur until all returnees are processed. DFAT assesses that returnees are treated according to these standard procedures, regardless of their ethnicity and religion, and are not subject to mistreatment during their processing at the airport.

[44]    As a returnee, I accept that the applicant may be questioned by police at the airport and charged under the Immigrants and Emigrants Act 1949 (I&E Act). As part of this process, most returnees will be fingerprinted and photographed, then transported to the nearest Magistrates Court at the first available opportunity. However, returnees may be required to remain in police custody at the CID Airport Office for up to 24 hours if a Magistrate is not available before this time, such as a weekend or public holiday, and may be held at a nearby prison. The US Department of State reports that general prison conditions in Sri Lanka are poor due to gross overcrowding and poor sanitary conditions.

[45]    DFAT reports that as a deterrent fines, rather than custodial sentences, are issued to persons who were passengers on a people smuggling boat with the amount of the fine varying on a case-by-case basis and payable by instalment if the returnee faces difficulty with payment.

[46]    The country information indicates that if a person who departed illegally pleads guilty, they will be fined and released. In most cases, if they plead not guilty, they are immediately granted bail on personal surety by the Magistrate, or may be required to have a family member act as guarantor. They may sometimes need to wait until a family member comes to court to act as guarantor. The applicant's representative submitted that the applicant would face an extended period in prison while waiting for a family member to attend as required under the bail provisions. The representative does not indicate if it is the applicant's intention to plead not guilty to the offence of departing Sri Lanka illegally. There is no other information before me to indicate that he would plead not guilty and considering the fact that the applicant has consistently stated that he did depart illegally, I find the representative's assertion to be speculative, however I accept that in the event that the applicant does plead not guilty and no family member is present that he may face a longer period in prison. Bail conditions are imposed on persons who departed illegally on a discretionary basis, although DFAT understands that conditions are rarely applied, and a person will only need to return to court when the case against them is being heard. DFAT assesses that ordinary passengers, such as the applicant, are generally viewed as victims.

[47]    The applicant was only a passenger on the boat. Based on country information I find that the applicant may be detained and questioned at the airport for up to 24 hours, be fined for breaching the I&E Act and, may face a period of time held in prison.

[48]    The High Court endorsed in MIBP v WZAPN [(2015) 254 CLR 610], that whether a risk of loss of liberty constitutes serious harm required a qualitative judgment, including an evaluation of the nature and gravity of the loss of liberty. Should the applicant be held over a weekend or public holiday until seen by a Magistrate, I am satisfied the applicant would face only a brief period in detention. Even having regard to general poor prison conditions, I do not consider that a brief period in detention would constitute the necessary level of threat to his life or liberty, or to significant physical harassment or ill treatment under s.5J(5) of the Act or otherwise amount to serious harm for the applicant.

[49]    Similarly, I do not consider any likely questioning of the applicant by the authorities at the airport on arrival, any surety imposed, or the imposition of a fine, to constitute serious harm under s.5J(5) of the Act.

[50]    Additionally, the country information states that all persons who depart Sri Lanka illegally are subject to the I&E Act on return. That law is not discriminatory on its terms. Case law states that a generally applicable law will not ordinarily constitute persecution because the application of such a law does not amount to discrimination. In this case, the evidence does not support a conclusion that the law is selectively enforced or that it is applied in a discriminatory manner. I find that the investigation, prosecution and punishment of the applicant under the I&E Act would be the result of a law of general application and does not amount to persecution for the purpose of ss.5H(1) and 5J(1) of the Act.

[51]    The post-interview submission cites a number of reports reporting mistreatment of returned asylum seekers, however I note these reports date largely from 2012/2013, with one report referring to the arrest of 37 asylum seekers in July 2014 who were later charged with leaving the country illegally, but I note there is no indication of any mistreatment. Considering the evidence before me I am not satisfied that the applicant's status as a failed asylum seeker would bring him to adverse attention on return to Sri Lanka. I accept that there are reports of mistreatment of returned asylum seekers who have an actual or imputed profile of LTTE links, but I do not accept the applicant has such a profile or would be perceived as such. DFAT has assessed that the risk of torture or mistreatment for the majority of returnees, including those suspected of offences under the I&E Act is low and I note that overall there have been relatively few such allegations in the context of the thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia and other countries. I am not satisfied that there is a real chance the applicant would face any harm as a returning failed Tamil asylum seeker.

(Footnotes omitted)

25    The Authority concluded that the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act, and so did not meet the requirements of s 36(2)(a) of the Act. For similar reasons, the Authority concluded that the applicant did not meet the requirements of s 36(2)(aa) of the Act (criteria for protection obligations).

New information - the CAT report and 2017 DFAT report

26    The Authority obtained and had regard to new information, specifically information regarding Sri Lankans who have departed Sri Lanka illegally and sought asylum while overseas, from a Department of Foreign Affairs and Trade (DFAT) report dated January 2017. The January 2017 DFAT report post-dates the DFAT information before the delegate and post-dates the delegate's decision, and the Authority was satisfied that there were exceptional circumstances to justify considering the new information. The January 2017 DFAT report is also later in time than the CAT report, and is referred to in the footnotes to the paragraphs included above.

27    In a fast track review, the Authority is not to consider new information except in exceptional circumstances. Section 473DD of the Act provides as follows:

Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

28    The paragraph of the CAT report central to the applicant's submissions on this appeal is [9], which states as follows:

Allegations of routine torture during police detention

9.    The Committee remains seriously concerned over consistent reports from national and UN sources, including the UN Special Rapporteur on torture, indicating that torture is "a common practice carried out in relation to regular criminal investigations in a large majority of cases by the Criminal Investigation Department of the police,", regardless of the nature of the suspected offence. The Committee is concerned that the broad police powers to arrest suspects without a court warrant has led to the practice of detaining persons while conducting the investigations as a means to obtain information under duress. The Committee notes allegations that police investigators often fail to register detainees during the initial hours of deprivation of liberty or to bring them before a magistrate within the time-limit prescribed by law, during which time torture is particularly likely to occur. It also notes the concern that neither the Attorney General nor the judiciary exert sufficient supervision over the legality of the detention or the conduct of police investigations to prevent this practice. In this regard, the Committee shares the concern of the Special Rapporteur on torture that magistrates often do not inquire into potential ill-treatment during pre-trial hearings, and accepts the requests of police officers to keep suspects in remand custody without further scrutiny (arts, 2, 12, 16).

The Submission

29    The Submission summarised parts of the CAT report and said that the Authority must take the CAT report into account. However, it was said the CAT report should be considered in the context of the delegate having accepted that the applicant was imputed with Liberation Tigers of Tamil Eelam (LTTE) involvement and that should he continue with political activities he could be threatened by Tamil paramilitary groups.

30    It was also said that the CAT report was relevant in distinguishing the matters of SZTAL and SZTGM, both at that time subject to a grant of special leave to the High Court, and now decided and reported together as SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ). It was said the process of being detained or imprisoned referred to in the CAT report demonstrates 'a sufficient intention by the state (through its judicial arm) to inflict pain or suffering or extreme humiliation to those detained/imprisoned'.

The Authority's decision on the CAT report

31    The Authority clearly read the Submission but declined to have regard to the CAT report, stating that:

[5]    The [Submission] in part addressed the delegate's decision and findings, and to that extent, may be referred to as argument about matters that were before the department and therefore not new information. I have had regard to the comments regarding other decisions made by the IAA and cases before the High Court of Australia.

[6]    The [Submission] states the IAA must consider the contents of the more recent Committee Against Torture (CAT) report published after the date of the delegate's decision and cites extracts relating to abduction and torture of people suspected of having Liberation Tigers of Tamil Eelam (LTTE) links. The submission goes on to state that "the applicant faces a real chance of Convention related persecutory treatment as in the past the applicant has been imputed with LTTE involvement/support previously on the basis of Tamil ethnicity and place the applicant originates from (i.e. LTTE controlled area)" and that the IAA should consider the recent CAT report which is reflective of the current situation in Sri Lanka and which has been published by a reliable source.

[7]    I have had regard to the applicant's written and verbal claims and I note that there is no indication in the applicant's claims that he was involved with the LTTE, or was imputed as having an LTTE profile. In response to direct questions at the SHEV interview about LTTE involvement the applicant stated that he had no links to the LTTE and in response to questions about any harassment from the authorities the applicant stated that he was not personally beaten but that he knew this happened to people in his area. I am not satisfied that there is a claim that the applicant was imputed with LTTE involvement or support. In his statutory declaration the applicant referred to being a Tamil and from the Eastern Province in terms of his inability to relocate and did not advance claims of an imputed LTTE profile.

[8]    The [Submission] quotes a number of claims accepted by the delegate and asserts that the delegate accepted "the applicant was imputed with LTTE involvement/support previously on the basis of Tamil ethnicity and place the applicant originates from (i.e. LTTE controlled area)." The delegate referred to incidents of detention of Tamils in the past and noted that "LTTE support at times [was] imputed on the basis of ethnicity" and she further stated "I accept this imputation was made in the past". However, the delegate did not make a finding that the applicant was imputed with an LTTE profile. The delegate noted that the "the applicant has not submitted any claims" to have been a member of the LTTE or to have provided any support to the LTTE. The delegate makes a clear finding that "the applicant did not have a profile of interest with the Sri Lankan authorities and was not suspected of involvement with the LTTE". Noting that there is no indication in the applicant's claims that he was involved with the LTTE, or was imputed as having an LTTE profile, I am not satisfied that there are exceptional circumstances that justify the IAA considering the CAT report.

[9]    I note the references to the CAT commentary regarding torture during pre-trial detention or as part of criminal investigations. Similarly to above, noting that there is no indication in the applicant's claims that he would be subject to pre-trial detention or criminal investigations I am not satisfied that there are exceptional circumstances that justify the IAA considering this new information.

32    It is apparent from its reasons that the Authority's decision to decline to take into account the CAT report but to obtain the January 2017 DFAT report was based on its assessment that:

(a)    there was no indication in the applicant's claims that he was involved with the LTTE, or was imputed as having an LTTE profile;

(b)    there was no indication of a claim by the applicant that he would be subject to pre-trial detention or criminal investigations of the type described by the CAT report; and

(c)    the applicant's claim for protection was made on the basis that he departed Sri Lanka illegally and sought asylum while overseas.

Before the Federal Circuit Court

33    Relevantly, the complaint as to failure to have regard to the CAT report was before the primary judge as ground 8.

34    The primary judge dismissed the ground, giving the following reasons (at [47]-[48]):

The consequences of the illegal departure by the applicant was a claim the subject of consideration and adverse findings by the Authority that were open to the Authority. The reference to the illegal departure and consequence of imprisonment is not I find, a reference to the same topic of pre-trial detention and criminal investigation identified in the CAT report. That CAT report, on a fair reading, was concerned with regular criminal investigations, and not the consequence of return to Sri Lanka, having illegally departed. That proposition is supported by the reference to the issuing of warrants or arrest without warrants in the CAT report.

I find the Authority was correct in its understanding of the CAT report and was correct in its understanding that the applicant had not raised a claim of concern in relation to pre-trial detention or as part of a criminal investigation of the kind identified in the CAT report. Accordingly, there was no jurisdictional error by the Authority as alleged in ground 8 when considering the application of s 473DD of the Act.

Proposed ground of appeal

35    The applicant seeks to pursue only one ground of appeal before this Court, being that the primary judge erred in failing to find jurisdictional error in circumstances where there had been a breach of s 473DD of the Act by the Authority by misdirecting itself as to whether the applicant's Submission constituted new information. Counsel explained that the complaint was limited to the CAT report.

The applicant's submissions on the ground of appeal

36    In short, the applicant contends that first, the Authority failed to understand the nature of the applicant's claim and second, it failed to understand the nature of the content of the CAT report.

37    The submissions on his behalf proceeded as follows:

(a)    the applicant claimed in his Statutory Declaration that:

As I departed Sri Lanka illegally I believe I could be imprisoned for a long period and, if imprisoned, I fear being harmed as a Tamil.

(d)    that statement could be accepted as either a claim that he will be imprisoned for a long period, or a claim that he may face penalties under the Immigrants and Emigrants Act 1949 and held for a period as a result;

(e)    the Authority's statement (at [9] of its reasons) in declining to accept the CAT report that 'there is no indication in the applicant's claims that he would be subject to pre-trial detention or criminal investigations' must have involved a failure to understand that the applicant had in fact made such a claim by way of the statement included in the Statutory Declaration;

(f)    by that statement the applicant clearly made a claim that turns on his potential detention at large;

(g)    the primary judge construed the CAT report artificially by reasoning that it was concerned with regular criminal investigations and not the consequence of return to Sri Lanka, having illegally departed;

(h)    there is nothing in the terms of the CAT report to limit it in that manner: when he is taken aside at the airport upon return to Sri Lanka, he would be under arrest, and taken into custody because he will have committed an offence; and

(i)    accordingly, accepting that he may be held in custody, the CAT report is possibly relevant and the Authority should have had regard to it.

The Minister's submissions

38    The Minister's counsel addressed the proposed ground of appeal by first addressing the nature of the claims made and the content of the CAT report as follows:

(a)    the relevant extract from the Statutory Declaration squarely raises the issue of a fear of harm emanating from the applicant having departed Sri Lanka illegally (and not otherwise);

(b)    the only detail that is given in relation to that claim is a belief of the applicant that he could be imprisoned for a long period and, if imprisoned, presumably for that long period, he feared being harmed for reason of being a Tamil;

(a)    there is no reference to the applicant being in any particular fear of torture or investigation as a criminal suspect or anything of that nature;

(b)    the claim that was made - fear of harm emanating from the applicant having departed Sri Lanka illegally - was considered by both the delegate and the Authority;

(c)    the Submission provided to the Authority sought to rely on the CAT report in a particular way: it was advanced in the context of the applicant's alleged involvement in the LTTE and in the context of the element of an intention to fear harm arising from imprisonment even for a short period; and

(d)    an examination of the CAT report indicates no error on the part of the Authority's understanding or the primary judge's understanding of what the CAT report addressed, which was torture that occurs in particular circumstances, circumstances that do not form part of the applicant's claim;

(e)    it is necessary to have regard to the words of the CAT report to ascertain the type of practice that is the subject of concern;

(f)    that practice, which is said to be common, is torture carried out 'in relation to regular criminal investigations' in a large majority of cases by the Criminal Investigation Department (CID) of the police, and occurs when they detain suspects while conducting investigations as a means to obtain information under duress, after arresting them without a court warrant and before registering them or bringing them before a magistrate.

39    The Minister submitted that it is clear from its reasoning that the Authority engaged specifically with the matters that had been raised by the applicant. It expressly considered the alleged LTTE link referred to in the Submission and noted it lacked foundation, as there was no indication in the applicant's claim that he was imputed as having an LTTE profile.

40    The Authority then had particular regard to the commentary in the CAT report regarding torture during pre-trial detention or as part of criminal investigations and considered it is referring to torture in those particular circumstances. The Authority considered that there is no indication in the applicant's claims that he would be subject to such pre-trial detention or criminal investigation.

41    The Authority took into account the nature of the claims that the applicant had made: it recorded in its reasons that he feared being detained for a long period in detention and his fear of harm in that respect was related to his illegal departure and because he was Tamil.

42    The Authority went into some detail in considering the country information relevant to the position of a Sri Lankan failed asylum seeker upon their return to Sri Lanka, including where the departure has been illegal. That is, it considered the country information relevant to the claim in fact made by the applicant. There was no claim that the applicant would be detained other than because he had departed illegally and was a failed asylum seeker. The country information addressing the position of such returnees did not refer to criminal investigations being conducted of the kind mentioned in the CAT report.

43    For example, the country information indicates that if a person who departed illegally pleads guilty they will be fined and released. In most cases if they plead not guilty, they are immediately granted bail on personal surety or may be required to have a guarantor. That is not treatment suggestive of being in a category of persons described in the CAT report who might be detained by the CID and then placed under duress and tortured to obtain information before coming to trial. The Authority said the submission made by the representative that the applicant may plead not guilty was speculative, but accepted that if that were so, and no family were present to act as guarantor he may face a longer period in prison, but considered in effect that such treatment is not consistent with the mistreatment circumstances of a pre-trial criminal investigation described in the CAT report. Further, as a passenger and not a people smuggler, there was no suggestion the applicant might face potentially more serious consequences.

44    In short, according to the Minister, the Authority was not satisfied that the CAT report should be considered under s 473DD of the Act because it was not addressing the risk exposed by the applicant's claims. Its conclusion that it was not satisfied that there were exceptional circumstances that justified considering the new information is to be viewed in such context.

Determination

45    The Authority had regard to the Submission, the nature of the claim as enunciated by the applicant in his Statutory Declaration and before the delegate, country information as to the treatment of Sri Lankans who have departed Sri Lanka illegally and the particular circumstances addressed by the CAT report.

46    While the applicant submitted before me that the claim comprised one of 'detention at large' that ignores the context of the claim being expressly based upon his illegal departure. Further, the claim as explained by his representatives in the Submission was linked to his claim to have an LTTE imputed profile, a claim that was not accepted.

47    The claim as put by the applicant accords with the type of claim considered by the January 2017 DFAT report and other country information addressed in detail by the Authority, and I accept the Minister's submissions in that regard.

48    This is not a case where there is a challenge to the Authority's understanding of 'exceptional circumstances' under s 473DD(a). It is not suggested that there was a failure more generally to take into account relevant matters that would have informed the question of whether there were exceptional circumstances: see BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221 (White J); Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 (Kenny, Tracey and Griffiths JJ); CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 (Gilmour, Robertson and Kerr JJ).

49    My strong impression, bearing in mind this is an extension application, is that the Authority carried out an evaluative task of assessing the relevance of the CAT report and provided reasons, reasons that were supported by its examination of the applicant's protection claim and the January 2017 DFAT report. The judgment made by the Authority that it was not satisfied as to there being exceptional circumstances was one that was open to it and justified by the reasons it gave.

50    It follows that I do not consider the applicant has any real prospects of establishing that the primary judge erred in dismissing ground 8 of the application for judicial review.

51    For completion, I note that the applicant contended in written submissions that the primary judge was wrong ([47] of the primary judge's reasons) to find support for his finding in the fact that the CAT report refers to the issuing of warrants or arrest without warrant. Presumably the applicant assumes the primary judge is referring to a difference in circumstances where warrants are or are not required. That does involve some speculation as to what was intended by the primary judge. However, even disregarding that sentence, the outcome is not affected. In my view, there is still no jurisdictional error disclosed on the part of the Authority and the primary judge's conclusion to that effect was correct.

52    It follows that I do not consider the ground of appeal has any sufficient prospects of success and accordingly the extension of time is refused. Costs should follow the event.

Associate:    

Dated:    19 November 2018