FEDERAL COURT OF AUSTRALIA

FHB17 v Minister for Immigration and Border Protection [2019] FCA 161

ORDERS

THE COURT ORDERS THAT:

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

2.    The Applicant pay the First Respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

(Revised from Transcript)

KERR J:

1    This is an application for an extension of time within which to appeal against a judgment of the Federal Circuit Court of Australia (FCCA), pursuant to r 36.05(1) of the Federal Court Rules 2011 (Cth) (the Rules).

Background

2    The Applicant entered Australia in October 2012 as an unauthorised maritime arrival. On 5 January 2016, the Applicant applied for a Safe Haven Enterprise (class XE) (subclass 790) Visa (the visa). On 7 April 2017 a delegate of the First Respondent (the Delegate) refused to grant the visa. The Delegate’s decision was affirmed by the Immigration Assessment Authority (the IAA) on 13 November 2017. The Applicant applied to the Federal Circuit Court of Australia (FCCA) for review of the delegate’s decision. On 15 May 2018, the FCCA heard and dismissed the Applicant’s application, delivering ex tempore reasons.

3    The Applicant applied to this Court for an extension of time on 27 September 2018. The circumstances relating to the delay since 15 May 2018 are discussed below. The FCCA’s written reasons were published on 5 October 2018.

Relevant principles for extension of time

4    It is well settled that in considering whether to grant an extension of time in which to appeal pursuant to r 36.03 of the Rules, the Court will have regard to the length of, and explanation for the delay; any prejudice that the respondent/s may suffer, and the prospects of success if the extension were granted: see Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 per Wilcox J at 348-349 and SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 per Flick, Griffiths and Perry JJ at [6].

5    As noted above, the primary judge dismissed the application for judicial review on 15 May 2018. The Applicant’s application for an extension of time was filed in this Court on 27 September 2018, more than three months after the expiration of the 21 day period within which a notice of appeal must be filed in this Court pursuant to r 36.03 of the Rules. That is, as the Minister submits, a significant delay.

6    The Applicant has filed an affidavit in support of his application, annexing certain relevant documents. It is uncontentious that following the ex tempore judgment delivered by the primary judge on 15 May 2018, a solicitor emailed the primary judge’s chambers on the Applicant’s behalf on 5 June 2018, requesting a copy of his Honour’s written reasons.

7    The Court has no basis to conclude that that request was drawn to his Honour’s attention, but it is uncontentious that the reasons were not provided at that time. The Applicant subsequently sought to appeal the decision of the FCCA to the High Court of Australia, lodging a summons, application to show cause, and an outline of submissions. In that material, the Applicant stated his belief that he was unable to appeal directly to the Federal Court of Australia because he did not have the primary judge’s written reasons, and because the time period for commencing an appeal had expired (application to show cause, CB 118-125).

8    By letter dated 4 September 2018, a Deputy Registrar of the High Court advised the Applicant that the documents had not been accepted for filing on the basis that the Applicant had not exhausted all available appeal rights before seeking to invoke the jurisdiction of the High Court. The letter advised that it was open to the Applicant to file an application for extension of time in the Federal Court, despite not yet having a copy of the primary judge’s written reasons (at CB 171). Notwithstanding having been so advised, the Applicant did not take any step until 27 September 2018, when he filed the application for an extension of time that is now before the Court.

9    In his written submission, counsel for the Minister concedes that the Minister would not be prejudiced if an extension of time were granted. However, he submits that the Applicant has failed to provide a satisfactory explanation for the delay in commencing the appeal. In particular, the Minister notes the delay between the correspondence from the High Court on 4 September 2018 and the filing of the application for an extension of time on 27 September 2018. The Minister further submits that the Applicant has given no explanation of why he thought himself unable to commence an appeal in this Court without having the primary judge’s written reasons.

10    In submissions before me the Applicant indicated that he understood he needed the published reasons of the primary judge before he could draft grounds of appeal. While I accept the underlying premise that he had such a belief, once the High Court had rejected his application and advised him of what he was entitled to do, he must have known it was incumbent on him to seek leave to bring an application for an extension of time as a matter of urgency, notwithstanding his not having yet received the primary judge’s written reasons, as in fact he did ultimately some 23 days later.

11    In his oral submissions the Applicant accepted that he had known that there was a time limit of 21 days for him to file his appeal. In the circumstances, I accept, as the Minister submits, that the overall delay has been substantial and at least for the period of 23 days since the disposition of his proceedings in the High Court, inadequately explained.

12    However, I would not, in light of the unusual circumstances referred to above, treat the factor of delay as dispositive of the application to extend time, particularly given the Minister’s acceptance that he would suffer no prejudice were leave to be granted. I would therefore grant leave if persuaded that the Applicant’s draft grounds of appeal had any reasonable prospects of success assuming he were granted the extension of time he seeks. I therefore turn to that question.

13    With respect to the necessary consideration of the merits of the proposed appeal, I respectfully adopt the general statement of principle set out in DWK17 v Minister for Home Affairs [2019] FCA 66 per Banks-Smith J at [15]:

In considering whether to grant the extension of time, the Court should consider at a ‘reasonably impressionistic level’ whether the proposed ground of appeal is ‘arguable’, ‘reasonably arguable’, ‘sufficiently arguable’ or has reasonable prospects of success: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J) (approved by the Full Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38] (Tracey, Perry and Charlesworth JJ)).

Summary of the Applicant’s claims

14    The Applicant is a Sri Lankan Tamil Hindu. The Applicant was born in Jaffna District in the Northern Province of Sri Lanka.

15    In summary, the Applicant’s claims are as follows:

    The Applicant’s father was a member of the Liberation Tigers of Tamil Eelam (LTTE) who was killed in combat in 2000. The Applicant and his family are favoured by the LTTE because his father is considered a martyr.

    The Applicant and his family fled their home twice to avoid the war, but were detained by the Sri Lankan authorities from March 2009 until October 2009 because of their association with the LTTE. During this time, the Applicant was separated from his mother and interrogated once a week, on average. The Applicant was also interrogated by the Criminal Investigation Department (CID) for three weeks between July and August 2009. He was kept in a dark room, blindfolded and beaten severely. The officers suspected the Applicant of LTTE involvement and asked him to identify other members of the LTTE. The Applicant continues to suffer back pain from the severity of the beating. The Applicant’s sister and mother were also interrogated.

    The Applicant and his mother were only released after they signed a document in Sinhalese. They were told to report to the local CID office weekly and warned that the CID could bring them in for questioning at any time. The Applicant claims that despite him and his family having reported weekly, CID officers and police had conducted checks and questioned the Applicant and his family on average once or twice a week. The Applicant felt that it was obvious the authorities were keeping an eye on them.

    The Applicant felt that it was unsafe for his family to remain where they were living as many people who had been detained and released as they had were abducted or suddenly disappeared. The Applicant relocated to a school hostel without informing the CID. The Applicant learnt that the CID had gone to his family home and questioned his mother on his whereabouts. His mother was detained at the CID office on a few occasions. The Applicant was safe at the hostel; the authorities did not come inside the school premises while he was there.

    Between January 2010 and September 2012, the Applicant travelled to his village approximately 6 or 7 times, accompanied by a priest from the school. He stayed for a day at a time as it was too dangerous to remain any longer. The Applicant was unable to remain at the hostel indefinitely and realised after completing his exam that he would have to return home. Faced with that prospect, the Applicant fled Sri Lanka in 2012.

    The Applicant was injured in a shell attack at the end of 2008, taken to hospital by the LTTE and arrested by the Sri Lankan authorities on suspicion of being an LTTE member.

    The Applicant had been the president of a student association at school (2007-2008) where he had been involved in organising functions when members of the political wing of the LTTE held events at the school. The Applicant had participated in a month of training at the school, learning to handle a rifle and to hide in the jungle.

    The Applicant had passed intelligence to the LTTE, informing the LTTE when strangers came to the village or if anyone acted out against the LTTE.

    The Sri Lankan authorities had sent two letters to the Applicant’s mother and issued a warrant for his arrest.

    The Applicant would likely be identified if he returned to Sri Lanka. He may face detention and mistreatment. The authorities would be unable to protect him if he were targeted by the CID.

16    The Applicant claims to fear harm if returned to Sri Lanka for the following reasons:

    The Applicant is a young Tamil who lived in Vanni, formerly an LTTE-controlled area.

    The Applicant’s father is considered an LTTE-martyr.

    The Applicant was previously detained on suspicion of LTTE involvement.

    The Applicant has not reported to the CID since January 2010.

    The Applicant fled Sri Lanka illegally and sought asylum in Australia.

    The authorities will infer that he did so because he had something to hide.

    The Applicant has scars on his body (a shrapnel injury on the right of his head and a large scar on his left wrist.

The Delegate’s decision

17    As noted above, on 7 April 2017 the Delegate refused the Applicant’s visa application. The Delegate’s decision was automatically referred to the IAA for review under Pt 7AA of the Migration Act 1958 (Cth) (the Migration Act).

The IAA Decision

18    A submission was provided to the IAA on the Applicant’s behalf, comprising a statutory declaration, a document in the form of a warrant of arrest issued in the Applicant’s name, and an “Information Book” dated 14 July 2016, which had been before the Delegate and were not new information. Also provided was, an Information Book dated 15 January 2015 (which despite its earlier date, had not been before the Delegate) and a report of Dr Malcolm Hughes dated 2 May 2017. On 23 July 2017 a further submission was received by the IAA containing a report of an Accredited Mental Health Social Worker, Sumana Kodi, dated 23 July 2017 and a document in a language other than English entitled “Penial Full Gospel Church of Sri Lanka”.

19    At [6]-[14] of its reasons, the IAA considered whether it could have regard to the information before it. The IAA determined that the Information Book dated 15 January 2015 was new information as it had not been before the Delegate (at [6]). However, it concluded that the information related to a person other than the Applicant, and there was no information to suggest that it had any relevance to the Applicant’s claims for protection and was therefore credible personal information. The IAA was also unpersuaded that the information could not have been provided prior to the making of the Delegate’s decision. It concluded there were not exceptional circumstances justifying consideration of the information. Accordingly, the IAA did not have regard to that Information Book.

20    The IAA also determined that there were no exceptional circumstances to justify it having regard to the 2 May 2017 report from Dr Malcolm Hughes. The IAA reasoned that the report contained clinical observations of the Applicant’s injuries and recounted the Applicant’s claimed experiences in Sri Lanka as described to Dr Hughes by the Applicant. The IAA concluded that the report “does not add any substantiation to the information already provided by the [A]pplicant” given that the Delegate had accepted that the Applicant had sustained injuries in a shelling attack, and the Applicant’s wounds and scars were not in dispute.

21    The IAA noted that the Delegate had not accepted that the Applicant’s back pain was a result of interrogation by the authorities. The IAA reasoned that Dr Hughes’ report confirmed the presence of the Applicant’s back pain, but did not provide any insight into its cause. In that regard, the IAA noted that at the Applicant’s visa interview, his then representative had advised that he had requested x-rays which might provide details as to the cause of the pain, but that was not contained in Dr Hughes’ report. The IAA was not satisfied that there were exceptional circumstances justifying consideration of Dr Hughes’ report.

22    The IAA determined that the report of Sumana Kodi was new information on the basis that the Applicant had consulted the social worker after the date of the Delegate’s decision and on that basis, the information it contained could not have been provided to the Minister. The IAA was satisfied that, confined to one circumstance, the social worker’s report contained credible personal information, and that exceptional circumstances existed to justify the IAA considering the report. The report opined that, due to his circumstances and condition, the Applicant had not told the delegate about (a) his experience as an LTTE fighter; and (b) the sexual abuse he suffered at the hands of the Sri Lankan authorities. The IAA considered that exceptional circumstances (including shame) existed only insofar as its consideration went to the Applicant’s reasons for failing to disclose the abuse he had suffered, including sexual abuse.

23    The Applicant’s statutory declaration was also found to be new information which was not and could not have been before the Delegate, having been sworn on 5 May 2017. However the IAA noted that the content of the statutory declaration related to a number of matters predating the decision, and sought to introduce new claims regarding the Applicant’s involvement as an LTTE fighter and of sexual assault by the authorities. The Applicant stated that he had not disclosed the details of his LTTE involvement earlier as he believed he would be detained indefinitely if the Australian authorities became aware of the extent of his involvement. He was also concerned that the Sri Lankan authorities would find out. The Applicant stated that he was too ashamed and embarrassed to talk about the sexual assaults. The IAA concluded that exceptional circumstances permitting it to have regard to that new information pursuant to s 473DD of the Migration Act existed only with respect to the latter.

24    The IAA’s reasoning with respect to those issues appears at [10]-[13] as follows:

10    I have had regard to the report from the Mental Health Social Worker and I accept that survivors of sexual assault may experience shame and embarrassment and find it difficult to talk about their experiences. Country information recounts incidents of sexual assault by the Sri Lankan authorities of detainees and on that basis the applicant’s account is plausible. The applicant has consistently claimed he was detained in an internally displaced person camp for several months and that he was questioned and physically assaulted in the form of beatings while in the camp. I note that at his SHEV interview the delegate asked the applicant to describe the treatment he received, and although the applicant did not claim to have been sexually assaulted, I am willing to accept that he did not advance the claims of sexual assault earlier due to his shame and embarrassment. I am satisfied there are exceptional circumstances to justify considering the applicant’s claims that he was sexually assaulted while in detention.

11    However, I am not satisfied there are exceptional circumstances to justify considering the new claim relating to his involvement as an LTTE fighter. At the SHEV interview the delegate asked the applicant if he had read and understood the Tamil language information sheet, Important Information About Your Protection Visa Interview, sent to him with his invitation to interview, which he stated he had, and the delegate gave him an opportunity to correct any information in his application and to provide any further information. At his SHEV interview the applicant advanced new claims that in the period 2007 to 2008 his links to the LTTE included being president of the student association and organising functions at the school on behalf of the LTTE; providing information to the LTTE intelligence officer; and attending a one month LTTE training camp at his school which included arms training. He further stated that he considered himself to be an LTTE member. He advised the delegate he had not provided this information in his application or earlier because he was not sure that his information would be kept confidential and was concerned it may be provided to the Sri Lankan authorities.

12    The delegate advised the applicant of the importance of putting forward his complete and accurate protection claims and cautioned that he may not have another opportunity to do so. The delegate asked the applicant a direct question about any involvement in a combat role and the applicant denied any involvement as a fighter. The delegate put to the applicant that on the information before him he may form the view the applicant did not have a profile of concern to the authorities and the applicant did not take this opportunity to advance the claim to have been conscripted by the LTTE. At the conclusion of the interview the delegate asked the applicant if he had put forward all his protection claims and the applicant replied that he had mentioned everything. The applicant did not advance any claim to have been conscripted as a fighter by the LTTE in the last months of the war.

13    I have had regard to the Mental Health Social Worker’s report and the applicant’s comments regarding his reluctance to disclose his LTTE connections earlier, but I note that the applicant’s mental health did not prevent him disclosing to the Minister information of other significant LTTE links. I have difficulty accepting that the applicant was willing to advance information about his LTTE links as a student, and had also disclosed that his father was an LTTE intelligence officer and an LTTE martyr, yet he was not willing to disclose the claim that he was conscripted in the last months of the war. I accept that country information advises that the LTTE conducted widespread conscription of young Tamil men at this time, but the applicant’s willingness to disclose other significant links, and to refer to himself as an LTTE member, yet not disclose that he was conscripted by the LTTE brings into doubt the veracity of his claim. The applicant has failed to satisfy me that he could not have provided this information to the Minister, or that it is credible personal information. Moreover, I am not satisfied that exceptional circumstances exist that warrant the IAA considering these claims.

25    With respect to the document entitled “Penial Full Gospel Church of Sri Lanka,” the IAA reasoned that the Applicant had not provided it as part of his visa application and had not advanced any protection claims in regard to religion. The IAA rejected that document as not relevant to its review.

26    Having regard to the materials that had been referred to it by the Minister and the materials submitted on behalf of the Applicant that it had indicated it would take into account, the IAA accepted “as plausible” that the Applicant’s father was an LTTE member who worked for the intelligence wing and had been killed while fighting in 2000. The IAA accepted that as a family with LTTE connections in an LTTE-controlled territory, the Applicant and his mother and sister were at times displaced due to the advance of the army into LTTE-controlled territory.

27    The IAA accepted that the Applicant had attended school in Kilinochchi while displaced, but expressed concern that the Applicant had not provided any information about his asserted links to the LTTE during this period in his visa application. The IAA was not satisfied by the Applicant’s explanation that he had not provided that information earlier because of concerns that it would not be kept confidential and that it would be provided to the Sri Lankan authorities. The IAA noted that the Applicant had had legal assistance completing his visa application, and there was no information before the IAA to explain why the Applicant held these concerns but was later willing to provide the information during his visa interview. However the IAA concluded that, notwithstanding those concerns, it should give the Applicant the benefit of the doubt, noting that his claims were consistent with country information.

28    The IAA accepted that the Applicant was president of the student association and had been involved in organising functions at the school on behalf of the LTTE. The IAA also accepted as plausible that the Applicant had provided information to the LTTE about people in the village and activities of interest to the LTTE. The IAA accepted that the Applicant undertook a one-month LTTE training camp at his school, including arms training. However, the IAA was not satisfied that the Applicant’s low level of support for the LTTE meant that he became a member of one of the LTTE wings.

29    The IAA accepted that the Applicant and his family relocated within LTTE-controlled territory in around 2008 or 2009, and accepted that the Applicant had been injured in a shell attack in early 2009. It accepted as plausible that the Applicant was taken to an LTTE hospital for treatment and detected there by the army when they took control of the area. The IAA accepted that there were LTTE fighters in the same hospital and that the Applicant was photographed by the army. The IAA also accepted that the Applicant has residual scarring from his injuries.

30    The IAA accepted that the Applicant and his family had been taken to an Internally Displaced Persons (IDP) camp in around March 2009 when the army took over the area from the LTTE. The IAA accepted the Applicant’s account of having been questioned and physically abused in the camp on the basis that it was consistent with country information. The IAA also accepted that the Applicant had been interviewed alone by the CID while in the camp and that he was subjected to severe interrogation and physical abuse, and was on one occasion detained for three weeks in a dark room and blindfolded, beaten and kicked. The IAA noted that the Applicant had not advanced in his visa application or interview a claim that he had been sexually assaulted while detained. However, the IAA accepted on the basis of the new information that it had taken into account that shame and embarrassment might account for his reluctance to disclose that claim and that the country information reported sexual assaults of male detainees took place in IDP camps. The IAA accepted that the Applicant was assaulted as claimed.

31    The IAA accepted that the Applicant continued to have back pain from the physical abuse he had suffered while in the IDP camp. The IAA accepted that the authorities had been initially suspicious of the Applicant because he was a young Tamil man from a former LTTE-controlled area, detected in a hospital with LTTE fighters.

32    The IAA accepted that the Applicant had been subject to monitoring for a month after his release from the IDP camp, but did not accept that he was of ongoing interest to the authorities, or that they had obtained information about him or detained and questioned his mother regarding his whereabouts. The IAA was unpersuaded that the Applicant would have been able to evade the CID if they did have an adverse interest in him.

33    The IAA found that the Information Book documents and the Arrest Warrant were not genuinely issued documents, and concluded that the Applicant had fabricated their production to “enhance his protection claims.”

34    In the above circumstances and having regard to country information, the IAA concluded that the Applicant did not meet the requirements of the definition of a refugee contained in s 5H(1) of the Migration Act, and consequently did not satisfy s 36(2)(a) of that Act. The IAA also concluded that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of his being returned from Australia there was a real risk that the Applicant would suffer significant harm. Thus the IAA concluded that the Applicant also did not satisfy s 36(2)(aa) of the Migration Act. Having reached those conclusions, the IAA affirmed the Delegate’s decision.

FCCA proceedings

35    The Applicant sought review of the IAA’s decision in the FCCA. The Applicant was self-represented before the primary judge. The grounds advanced by the Applicant, as set out at [39] of his Honour’s reasons, were as follows:

Ground 1 – The Authority applied an unduly narrow interpretation of the term “exceptional circumstances” [6] and [7], and failed to consider all matters capable of constituting the circumstances of the applicant’s case as exceptional; Minister for Immigration and Border Protection v BBS16 [2017].

Particulars

1.    The Authority erred at [6] when it refused to consider an Information Book dated January 2015.

2.    More details to be provided once the court book is provided.

3.    The Authority erred at [7] when it refused to consider the doctor’s report dated 2 May 2017.

4.    The Authority was not satisfied that there were exceptional circumstances that warrants consideration of the doctor’s report [7].

5.    The doctor in his report referred to “Kyphoscoliosos” (which is a deformity of the spine) [7]

6.    The doctor in his report also referred to “Several penetrating wounds to the dorsum of the right foot …” [7].

7.    The Authority disregarded the doctor’s report on the basis of the “delegate’s finding” which was that the back pain was not as a result of severe interrogation by the authorities” [7].

8.    Despite an expert witness (being a medical practitioner) providing his observations particularly that the applicant has a deformity of the spine and that there have been Several penetrating wounds to the applicant’s foot, the Authority chose to disregard the expert witness’s opinion and even if it is accepted that [the] Authority did consider the doctor’s opinion, the Authority has failed to comprehend the contents of the doctor’s report before making a finding under s 473DD that there were no exceptional circumstances to consider the medical evidence.

9.    The Authority states “while Dr Hughes confirms the presence of back pain, his report does not provide any insight into the cause of the pain” [7]. This inference made by the Authority indicated the Authority did not read and or comprehend what the doctor’s report contained.

10.    The Authority accepted that the applicant “was repeatedly sexually assaulted as claimed” [23].

11.    The Authority accepted that “the applicant continues to have back pain from the physical abuse sustained while in the IDP camp” [24].

12.    The Authority erred therefore in failing to consider the doctor’s report in light of claims that it had accepted to be plausible. The Authority took a “narrow approach” when assessing if “exceptional circumstances did exist to consider the doctor’s report”.

Ground 2 – The Authority applied an unduly narrow interpretation of the term “exceptional circumstances” [11] and failed to consider all matters capable of constituting the circumstances of the applicant’s case as exceptional.

1.    The Authority accepted that the applicant “was repeatedly sexually assaulted as claimed” [23]

2.    The Authority accepted that “the applicant continues to have back pain from the physical abuse sustained while in the IDP camp” [24]

3.    The Authority accepted

a.    The applicant resided in an LTTE controlled area [17]

b.    The applicant’s father was an LTTE member / intelligence officer in the LTTE [17]

c.    The applicant’s father was killed in fighting (meaning during combat), hence it is implied that the applicant’s father was also a LTTE combatant [17].

d.    The applicant was “president of the student association and involved organising functions at the school on behalf of the LTTE” [19]

e.    The applicant operated as an LTTE informant [19].

f.    The applicant was amongst other LTTE fighters in an injured state at an LTTE hospital, and the army photographed him [20].

g.    The applicant was subjected to severe interrogation and physical abuse, was detained for three weeks held in a dark room, was blindfolded, beaten and kicked [22].

h.    The applicant “did not advance the claims of sexual assault earlier due to his shame and embarrassment” [10].

i.    “that the LTTE conducted widespread conscription of young Tamil men” [13].

4.    Having accepted the above referred to at 3. the Authority refused to consider the new information relating to the applicant’s involvement as an LTTE fighter [11].

5.    The Authority failed to take a broad approach when considering if there were exceptional circumstances to justify considering the new information in light of its other findings made by the Authority [11].

6.    The Authority was biased against the applicant when it chose to refuse to consider the new claim [11], regarding the applicant’s involvement as an LTTE fighter.

36    The Applicant did not file any evidence or written submissions prior to the hearing but made oral submissions before the primary judge, which were summarised with relevant findings made at [27]-[38] of his Honour’s reasons:

Applicant’s submissions from the bar table

27    From the bar table the applicant complained that he had been an LTTE fighter and that the Authority had not taken this into account. The Authority identified the new claim that was advanced before the Authority in respect of the applicant being an LTTE fighter. The Authority correctly identified the same as being new information. On the face of the material before the Authority, the Authority expressly considered the nature of that information and whether it met both limbs of s 473DD of the Act. On the face of the Authority’s reasons, there is no basis to hold that the Authority adopted an erroneous meaning or misconstrued the meaning of exceptional circumstances.

28    The Court has summarised the Authority’s reasons in relation to rejecting the new claim, which included what occurred before the delegate and the applicant expressly denying that he had been an LTTE fighter when asked by the delegate at the interview. It was in those circumstances that the Authority found that there were not exceptional circumstances to receive the new claim. Those reasons of the Authority cannot be said to be legally unreasonable and were open on the material before the Authority for the reasons given by the Authority, as summarised above. The applicant’s complaint in relation to the Authority not taking into consideration the new information does not identify any relevant legal error by the Authority.

29    Under the statutory regime, under Part 7AA of the Act, the Authority was not to receive new information unless the requirements under s 473CB, 473DC, 473DD and 473DE of the Act were satisfied. Nothing said by the applicant in that regard identified any jurisdictional error by the Authority.

30    The applicant complained that the Authority had not taken into account the letters concerning the CID and the warrant. It is apparent on the face of the Authority’s reasons that the Authority did take into account the information that had been provided before the delegate, as well as the warrant that was before the delegate. The Authority did not accept those documents to be genuine and that was a finding that was open to the Authority that cannot be said to be unreasonable.

31    The more recent Information Book provided by the applicant following the delegate’s decision, and the letter sent to the applicant inviting the applicant to put on new information and submissions, was one which the Authority addressed in its reasons in considering whether there are exceptional circumstances to have regard to the same. The Authority’s reasons reflect a consideration of both limbs of s 473DD of the Act and do not support the proposition that the Authority adopted an erroneously narrow meaning of “exceptional circumstances”. Nothing said by the applicant in relation to the letters, warrant or the Information Book identifies any jurisdictional error.

32    The applicant also complained that the Authority had not taken into account the applicant’s personal circumstances. The Authority’s reasons in paragraphs 16 to 25 reflect the Authority taking into account the applicant’s personal circumstances, and paragraph 25 reflects adverse findings in relation to part of the applicant’s claims with reasons that were logical and rational summarised in dot points by the Authority for the rejection of those claims.

33    The Authority took into account the applicant’s personal claim in relation to his Tamil background and family member being killed in fighting in 2010, and the detection of the applicant in hospital, then being taken to an IDP camp and being detained, questioned and mistreated. The Authority expressly referred to the sexual attack, but found the applicant does not have a well-founded fear of serious harm, applying a forward-looking test, and the Authority was not satisfied the applicant would come to the adverse attention of the authorities on return to Sri Lanka. The Authority expressly referred to the applicant’s past experiences and his subjective fear.

34    The Authority referred to country information and also referred to the applicant’s claims concerning scars on his body, and was not satisfied this would result in a real chance of harm to the applicant. The Authority found the country information did not support a finding that the applicant would face a real chance of harm on return to Sri Lanka by reason of being a young Tamil male from a former LTTE-controlled area, nor because of his past LTTE activities, or for reasons of his family’s links to the LTTE. The Authority found that the applicant has not been and would not be imputed with an LTTE profile.

35    The Authority referred to the incident involving the physical abuse of the applicant and his back pain, and found that there is not a real chance of serious harm to the applicant on the basis of his back condition. The Authority also referred to the applicant not speaking Sinhala and found that the country information did not support [a conclusion that] there is a real chance that the inability to speak Sinhalese would lead to any mistreatment. The Authority also referred to the circumstances in which the applicant departed Sri Lanka, and the Authority referred to having considered the applicant’s claims individually and cumulatively, and did not accept that the delegate did not take into account the applicant’s personal circumstances in determining the applicant’s claims.

36    On the face of the material before the Court, the Authority made adverse findings dispositive of the applicant’s claims that were open to the Authority for the reasons given by the Authority. There was no failure to consider the applicant’s individual circumstances.

37    The Court notes the applicant said he cannot go back unless there was a guarantee as to his safety. This, in substance, invites the Court to engage in impermissible merits review. The Court does not have power to review the merits.

38    The applicant also drew attention to an error that he had corrected in relation to his number plate in his statutory declaration. That reference does not give rise to any relevant legal error by the Authority, as it was open to the Authority to find that the applicant had not made out exceptional circumstances to justify receipt of the new information in respect of the number plate and the applicant being an LTTE fighter. No jurisdictional error is made out by anything said by the applicant from the bar table.

The primary judge’s disposition of the two appeal grounds before him

37    With respect to Ground 1 which went to alleged errors in the IAA’s declining to take into consideration the Information Book and Dr Hughes’ report, the primary judge found that the IAA’s reasons had reflected consideration of both limbs of s 473DD of the Migration Act. His Honour had earlier concluded that no legal unreasonableness was evident in the IAA finding that there had not been exceptional circumstances so as to justify consideration of the Information Book (see at [31]) or any basis to find that the IAA had adopted an erroneously narrow interpretation of the meaning of “exceptional circumstances” in reaching that conclusion.

38    The primary judge held that no jurisdictional error had been established with respect to the IAA’s conclusion that there had been no exceptional circumstances to justify it having regard to Dr Hughes’ medical report. The primary judge noted that the IAA had identified the information contained in that report, but given that it did no more than to replicate what the IAA had known of the Applicant’s circumstances in Sri Lanka as he had recounted, found that it did not add substantiation to the information already provided.

39    The primary judge found:

43    The Authority noted that there [sic] had been accepted by the delegate that the applicant had sustained injuries, and his scars were not in dispute. Reference was also made to the acceptance of the applicant having suffered back pain, but that the delegate was not satisfied that this was the result of interrogation. The Authority referred to the applicant’s representative’s advising at the Safe Haven Enterprise visa interview that the applicant had requested X-rays which may provide details as to the cause of his back pain. The Authority noted that whilst Dr Hughes confirms the presence of back pain, the report does not provide any insight in relation to the cause of the back pain. It was in those circumstances that the Authority was not satisfied that there were exceptional circumstances to warrant having regard to the report dated 2 May 2017.

44    The Authority’s reasons in relation to that report do not reveal any erroneously narrow application of the meaning of “exceptional circumstances”, and on a fair reading the Authority had regard to both limbs of s 473DD of the Act. The Authority’s reasons in relation to the rejection of the doctor’s report cannot be said to lack an evident and intelligible justification and accordingly were not legally unreasonable and were open to the Authority for the reasons given by the Authority. No jurisdictional error as alleged in ground 1 is made out.

40    With respect to Ground 2 which focussed on the Applicant’s contention that the IAA had erred in failing to take into account new information that he had been an LTTE fighter, the primary judge’s consideration was as follows:

45    In relation to ground 2, this alleges error in the finding that there was not exceptional circumstances to receive into evidence the applicant’s contention that he was an LTTE fighter. The Court has summarised above the Authority’s reasons for finding that the two limbs of s 473DD of the Act were not satisfied and that there were not exceptional circumstances to justify having regard to that information. Those reasons by the Authority cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by ground 2.

41    The reference in the second sentence to having earlier summarised the IAA’s reasons and having concluded there were not exceptional circumstances refers to his Honour’s reasoning at [29]-[36]. Incorporating those findings by reference, the primary judge held that the grounds of review as advanced had not been made out and that no jurisdictional error had been established.

Before this Court

42    The Applicant has annexed to his 24 September 2018 affidavit an unsealed draft notice of the appeal he seeks to bring if his application for an extension of time is granted. The Minister’s counsel makes no point of that not having been filed pursuant to the directions of the Registrar made on 31 October 2017. The draft notice of appeal sets out the following grounds of appeal (unaltered):

1.    When the Federal Circuit Court dismissed the matter of the 15th of May 2018, the decision was ex tempore. No written reasons were provided by the Court on that day.

2.    On the 5th of June 2018, the Applicant sent an Email to the Court seeking the written reasons in this matter.

3.    The Federal Circuit Court has not however provided the Applicant with the written reasons. As at the the 18th of September 2018, the Federal Circuit Court has still not provided the Applicant with the written reasons.

4.    The Federal Circuit Court has refused to provide the written reasons in this matter because the Federal Circuit Court is attempting to ensure that this matter cannot be reviewed by the Federal Court. The Federal Circuit Court is acting for an improper purpose by denying the Applicant the opportunity to seek the review of the decision.

5.    This error of law will not be remedied if the Federal Circuit Court now decides to provide its written reasons.

6.    The decision of the Federal Circuit Court in this matter was very brief and failed to provide any reasoning.

7.    The Federal Circuit Court would for example just state that it was open to the Immigration Assessment Authority to make such a decision without providing an explanation for such a finding.

8.    With each of the grounds for the dismissal of the matter the Federal Circuit Court failed to provide an adequate explanation for its decision to dismiss the matter.

9.    The Court had no evidence for its findings.

10.    The decision of the Court was unreasonable.

11.    The decision of the Court did not display a logical or probative basis.

12.    The Court took into account an irrelevant consideration.

13.    The Court made adverse findings as to the credibility of the Applicant. The Court was punishing the Applicant for the making of an inconsistent statement.

14.    The Applicant reserves the right to amend the grounds of Appeal.

Brief consideration of the merits of the proposed appeal

43    Proposed grounds 1-5 take issue with the delay in the provision of the primary judge’s reasons. I express the Court’s concern regarding that delay later in these reasons but whatever the merit of those concerns I accept the Minister’s submission that the reasons of a Court given ex tempore are the reasons for its decision.

44    It is settled law that if after the delivery of extempore reasons written reasons are provided the written version must reflect the substance of the actual reasons the judge gave orally. Written reasons of course may be edited, reorganised in order, cases cited and concepts referred to orally better expressed but a judge cannot sustain an ex tempore reasons on entirely new propositions.

45    Having regard to that proposition, proposed grounds 1-5 cannot provide a basis for this Court to set aside the primary judge’s decision. I reject the contention advanced that the primary judge’s delay in providing written reasons, extending past the time of the Applicant’s filing this proceeding for a request for leave to file out of time, could have prevented the primary judge’s decision from being reviewed.

46    I further reject that this Court is entitled to infer “improper purpose” on the primary judge’s part of his seeking to prevent the exercise of this Court’s appellate function. However, while delay following the delivery of oral reasons in providing a written decision is not itself an error of law, the primary judge’s long delay before providing his written reasons should not be passed over without an expression of concern.

47    In a matter involving an unrepresented litigant lacking proficiency in English, there is particular importance in providing written reasons as revised from the transcript following an oral decision as promptly as possible after a request is made. Fairness to an unsuccessful party is not the only concern. This Court should not be burdened with having to deal with generic appeals later requiring amendment filed simply to meet required time lines because prospective appellants have been left without the guidance of published reasons of the court below.

48    This case itself is a paradigm instance whereby considerable inconvenience has attended the primary judge not providing a published version of their reasons in a timely way.

49    Annexed to the Applicant’s affidavit of 24 September 2018 is a copy of the 5 June 2018 email to the primary judge’s associate requesting written reasons. The email cited the case file number of the matter decided by the primary judge and was headed, “Request for written reasons”. The email read:

Good Afternoon Associate

I appear for the Applicant in this matter.

The Applicant in this matter seeks your written reasons.

The e-mail was signed by a person identifying himself as a solicitor.

50    The Court is not entitled on the evidence before it to conclude that this email was received and drawn to the primary judge’s attention. It may well not have been. There appears to have been neither a response from the associate nor any follow-up on the Applicant’s behalf. However, as a matter of principle, it is essential that such requests, if received, are responded to promptly. The fact that a request is conveyed by email late in the afternoon of the same day on which the time permitted for the lodging of an appeal was to expire would not excuse a failure to respond.

51    Having concluded that proposed grounds 1-5 cannot be a basis for this Court finding that the Applicant has prospects of success on appeal, I turn to the remaining proposed grounds.

52    Proposed grounds 6-8 contend that the primary judge’s reasons were brief and did not provide adequate reasoning for his Honour’s ultimate conclusion that the findings made by the IAA had been open to it.

53    The Minister’s written submissions accept that a judge’s failure to give reasons for their judgment that adequately explain the court’s decision constitutes legal error. Counsel refers to DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175, in which Kenny, Kerr and Perry JJ said at [47]:

The requirement to give reasons is an incident of the judicial process and reasons ought to be given in any case in which an appeal lies from the decision in order to allow that right of appeal to be exercised: Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 667 (Gibbs CJ). As Mahoney JA stated in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273:

Where, in the decision of an ordinary dispute, reasons are necessary, they are necessary because of the expectation that, being a judicial decision, a sufficient explanation will be given of why the order was made. And, in my opinion, it will ordinarily be sufficient if … by his [or her] reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he [or she] has acted.

54    However, having had regard to the primary judge’s reasons I am unpersuaded, on the “reasonably impressionistic level” on which I am to have regard to the merits, that the Applicant has established that proposed grounds 6-8 inclusive have any reasonable prospect of success. The primary judge gave reasons for his findings that the IAA had engaged with both limbs of the test contained in s 473DD of the Migration Act in respect of the two grounds of appeal then before him: see the passages of his Honour’s reasons quoted at [36], [39] and [40] above. In that regard, I accept the Minister’s submissions at [24] of his written submissions:

… [T]his is not a case where the basis for his Honour’s rejection of the applicant’s arguments and grounds advanced below were not exposed. Reasons for judgment need not be lengthy in order to convey the basis of the decision. In the present case the primary judge’s reasons identified the applicant’s oral argument at the hearing: J [27], J [30], J [32], J [38]. The reasons also expose his Honour’s reasons for rejecting those arguments. The reasons further expose the grounds of the application, and his Honour’s reasons for finding that no jurisdictional error in the Authority’s decision was identified in the grounds: J [40]-[46]. The primary judge did not fail to address or consider any argument or ground advanced by the applicant in the exercise of the Court’s jurisdiction, cf COZ16 v Minister for Immigration and Border Protection [2018] FCA 46.

55    Having specifically referred to both limbs of s 473DD of the Migration Act, this Court is unable to accept that that particular aspect of the grounds proposed by the Applicant has any prospects of success. In addressing the appeal grounds then before him the primary judge found no error in the IAA having concluded that there were not exceptional circumstances warranting consideration of the doctor’s report on the basis that it had not added any substantiation to the information provided previously by the Applicant. The primary judge reasoned that the Applicant’s injuries were not in dispute, while the cause of the injuries were. Relevantly, the doctor’s report had confirmed the existence of the injuries, but had not provided insight into the cause.

56    In that regard, the primary judge at [43] referred to the IAA having noted that the Applicant’s representative at the visa interview had indicated that x-rays had been requested and might provide details as to the cause of the back pain. However, that was not the material that was in the doctor’s report and nothing has been advanced to show that the reception of the doctor’s report might have established the cause of the injuries as opposed to their existence. The Applicant has not raised as a proposed ground of appeal that there was a failure to adjourn the IAA proceedings to enable the production of x-rays and that was a matter which was not before the primary judge.

57    With respect to the Applicant’s claim to have been a member of the LTTE, it will be recalled that the IAA had taken into account the report of Sumana Kodi as new information it was entitled to have regard to only insofar as it referred to the Applicant having suffered sexual abuse. This aspect of the proposed grounds of appeal is critical because, if the IAA did take too narrow a view of exceptional circumstances in respect of the Applicant’s claim to have been a LTTE fighter, then the Applicant in my opinion would establish a basis on which an appeal might succeed.

58    However, the IAA had been at pains to distinguish between that claim and the new material which had been advanced on the basis that it had not been earlier disclosed by reason of the Applicant’s shame regarding the sexual abuse it accepted that he had suffered. Distinguishing those two aspects, it had reasoned that there had been no plausible basis for the Applicant not to have advanced his claim to have been an LTTE fighter at an earlier time in circumstances in which such a claim would have been plainly material to his status as a claimant for protection, and where he had disclosed details of other members of his family’s association and his own involvement with the LTTE. It is uncontentious that no earlier claim of his having been a LTTE fighter had been made by the Applicant.

59    I am therefore not persuaded that the conclusions expressed by the primary judge that the IAA proceeded on too narrow an understanding of the provisions of s 473DD of the Migration Act. His Honour’s summary at [45] correctly referred to the task that the primary judge was obliged to undertake. In turn that paragraph refers back to his Honour’s earlier analysis of the IAA’s reasons at, inter alia, [27]-[29] in which he had earlier given a more detailed explanation for his finding that jurisdictional error on the part of the IAA in respect of its application of the test of exceptional circumstances in s 473DD had not been established.

60     Evaluating these circumstances, as I must, on a reasonably impressionistic level, the IAA’s reasoning and that of the primary judge appears to be unexceptional.

61    The new information insofar as it related to his claim to have been an LTTE fighter was material that the IAA was entitled to find was not credible personal information in respect of the Applicant, in the circumstances that he had failed to mention it earlier. Further, it was plainly material that could have been produced before the Delegate. For the primary judge to have set aside a finding of the IAA in the circumstances disclosed would have required impermissible merits review.

62    In respect of proposed ground 9, I accept the Minister’s submissions that there is no basis for the assertion that the primary judge had no evidence for his findings. As the Minister submits, the task of the primary judge was not merits review: the primary judge was not required to make independent factual findings; rather he was conducting a judicial review of the IAA’s decision. As the Minister submits, to the extent that the Applicant seeks to challenge the primary judge’s findings on a factual basis, the ground lacks any sufficient detail to enable the Minister to respond.

63    Proposed grounds 10-12 variously contend that the primary judge’s decision was unreasonable, did not display a logical or probative basis, and took into account irrelevant considerations. The Applicant does not particularise those grounds. Nor have the primary judge’s reasons been challenged in specific terms in relation to any conclusion reached. I am unpersuaded that any of those grounds have sufficient prospects of success to warrant an extension of time.

64    Proposed ground 13 contends that the primary judge made adverse credibility findings with respect to the Applicant, and punished the Applicant for having made an inconsistent statement. This proposed ground appears to be entirely without merit. The primary judge made no independent findings about the Applicant’s credibility. The primary judge in conducting judicial review simply did not accept that the IAA’s finding that documents contained in the Information Book and Arrest Warrant had not been genuinely issued and that the Applicant had fabricated that account in an attempt to enhance his protection claims had established jurisdictional error.

65    No ground of review with respect to unreasonableness based on unsustainable credibility findings was before the primary judge. In my view, the assertion that the primary judge himself made adverse credibility findings cannot be made out.

66    If it needs to be said, the contention advanced in proposed ground 13 that the primary judge had punished the Applicant for having made inconsistent statements has no prospect of success.

67    Finally for the sake of completeness, I note that by his proposed ground 14, the Applicant “reserves his right to amend the grounds of appeal”. No application has been made to do so, notwithstanding the Applicant now having had the primary judge’s written reasons since they were published on 5 October 2018. The Applicant not having sought such an opportunity, this Court can only deal with the application for an extension of time on the basis of the existing proposed grounds.

Disposition and orders

68    The application for an extension of time must be dismissed with costs.

Associate:

Dated:    19 February 2019