Federal Court of Australia

AXP20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 924

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs, such costs to be taxed if not agreed.

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

REASONS FOR JUDGMENT

SC DERRINGTON J:

Introduction

1    This application concerns the refusal of the Federal Circuit Court (FCC) to extend time for the filing of an application under s 477(1) of the Migration Act 1958 (Cth) in circumstances where that application was filed 356 days beyond the prescribed time period of 35 days.

2    The application is made pursuant to s 39B of the Judiciary Act 1903 (Cth) for the grant of the constitutional writs of mandamus and certiorari directed to the FCC to quash orders of that Court and to direct the FCC, differently constituted, to determine the applicant’s application. The applicant also sought an order prohibiting the Minister from taking any further action in reliance on the FCC decision. The orders of the FCC which are under review, and which were made on 2 November 2020, dismissed the applicant’s application for an extension of time under s 477(2) of the Migration Act. The extension of time was sought by the applicant to make an application for judicial review of a decision of the Immigration Assessment Authority (IAA) made on 6 February 2019 affirming a decision of a Delegate of the Minister for Immigration and Border Protection not to grant the applicant a Safe Haven Enterprise visa (SHEV).

3    For the reasons that follow, no error has been shown on the part of the FCC and the application must be dismissed.

Legislation

4    For the purposes of determining the substantive issues on this application the relevant statutory provisions are ss 476, 476A and 477 of the Migration Act which provide:

476     Jurisdiction of the Federal Circuit Court

(1)    Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

…

476A    Limited jurisdiction of the Federal Court

        …

(3)    Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from:

(a)     a judgment of the Federal Circuit Court that makes an order or refuses to make an order under subsection 477(2); or

…

477    Time limits on applications to the Federal Circuit Court

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

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

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

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

5    It was accepted by both parties that the applicant was unable to appeal the primary judge’s decision to refuse to grant an extension of time to apply for a review of the IAA’s decision (Migration Act: s 476A(3)(a)). The only avenue available to the applicant to seek review of the primary judge’s decision was by way of s 39B of the Judiciary Act and to apply under s 476A for judicial review of the primary judge’s decision on the basis that it was invalid by reason of jurisdictional error.

6    In this regard it must be kept in mind that the FCC is an inferior court and its decisional freedom and corresponding immunity from jurisdictional error is broader than that of an administrative decision maker: SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; (2016) 238 FCR 456 at [20]. This was made clear in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, at 179-180 where the High Court said in relation to the difference between administrative decision makers and inferior courts:

If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise of purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error.

Background

7    The applicant is a Sri Lankan national, who arrived in Australia as an unauthorised maritime arrival on 5 May 2013. In his Unauthorised Maritime Arrival & Induction Interview, conducted on 17 May 2014, the Department recorded that he:

•    is from Sri Lanka

•    is a Hindu Tamil

•    speaks a little English

•    is married, and that his wife was currently residing at the Subramaniapuram Refugee Camp in Ambai Taluk, Tirunelveli District, Tamil Nadu

•    has two daughters, then aged 19 and 21, who were residing with their mother.

8    The applicant gave a ‘specific threat or incident’ as his principal reason for leaving Sri Lanka. This was recorded in the following terms (errors in original):

From my 24th year I faced a lot of problems. I am the elder one in the family. There is a armed group in the area where one member of each family has to join with them. WHO? LTTE. So I was the elder one so I escaped from them to Mannar district. I got married in 1997. In 1999 while I was living in Mannar the airforce bombed my village a lot of lives were lost and at that time my wife was pregnant so I went to the Chatdikulam area in Vavuniya district to protect them from that. While I was there my occupation was driving. The army questioned me whether I was providing food items to the LTTE. They gave this type of torture. One day I was arrested when I was going,, because there is an army camp there and they beat me and released me the next day. They threatened me that if I drive my vehicle that way they will kill me. I didn’t drive after that and I stayed home for about 25 days. Afterwards the army came to my home and brought me to where there is a big tree close to my house. They beat me under the tree. I have the scars still. Mt wife came and cried for them ‘Please release my husband’ so they beat my wife as well. My wife cried loudly and village people gathered around so they released us. They took my fingerprints. Then my wife told me if we continue to stay here we will be killed by them so we must escape from here. At that time one of my brother’s in law was shot by the army and killed so in 2009 we went to India. We had to face this situation so by boat I went to India in 2009.

9    In answer to a question about whether there was anything else the applicant would like to say, the following exchange is recorded (errors in original):

I want to show the wounds I have to you. THIS INTERVIEW ISNT TO ASSESS YOUR CLAIMS SO I DONT NEED TO SEE YOUR SCARS. In 2006 something happened in Sri Lanka. IS THIS A PART OF YOUR CLAIM? The army tortured me and my wife. IS THIS WHAT WE SPOKE ABOUT ALREADY? Yes.

10    On 19 July 2016, the applicant was invited to apply for a Temporary Protection visa or a SHEV. He applied for the latter on 17 July 2017. In his statement in support of his application, the applicant referred to his work as a driver in Mannar until 2007. He stated:

11.    I continued working as a driver in Mannar until 2007. The work as a driver was intermittent in Mannar, so I worked as a labourer in between on construction sites, farms, or anywhere I could get some work. In 2006 I was driving a truck from Vavuniya to Chettikulam, transporting people. The army accused me of transporting goods to the LTTE and I was captured and tortured at Poovarasankulam army camp. The army captured me at around 6:00 pm. They tortured me for around 4 hours before releasing me at 10:00 pm. I returned home after this and did not drive that route for some time.

12.    A couple of weeks later, after they had tortured and released me, the army came to my home looking for me. The army tortured me again. They hung me upside down on a tree and I was beaten by them. I still have those scars on my legs. My wife was stripped naked in from (sic) of me and raped by the army. It was very difficult for me to watch this. Once again, I was accused of transporting goods for the LTTE. They threatened to kill me.

13.    After that incident, I decided to leave Sri Lanka. My wife tried to commit suicide on three occasions following the incident. In my arrival interview at Christmas Island, I did not provide this information. I felt like it was a disgrace to my family at the time and I felt ashamed. I did not want to disclose the information then. However, this is my final chance to disclose what has happened to me and my family and I realise now that it is information that I need to provide. My wife could never return to Sri Lanka after what happened. , (sic) as she feared for her own personal safety as that our daughters.

11    On 21 August 2017, the Department acknowledged that it had received a valid application for a SHEV from the applicant and, on 29 August 2018, the applicant was requested to attend an interview with the Department. By letter dated 9 November 2018, the applicant was notified that the Department refused his application for a SHEV on the basis that: the Department was not satisfied that he is a refugee as defined by s 5H(1) of the Migration Act and so was not owed protection obligations by Australia as outlined in s 36(2)(a) of the Act; or, that there were substantive grounds for believing that there was a real risk of the applicant suffering significant harm as outlined in s 36(2)(aa) of the Act.

12    On 14 November 2018, the decision to refuse the applicant a SHEV was referred to the IAA for review. On 6 February 2019, the applicant was notified that the IAA affirmed the decision of the Department to refuse him a SHEV. The IAA observed:

9.    There are significant inconsistencies between the information the applicant provided during the Arrival interview, the information in the statement of claims submitted with the SHEV application, and the evidence given during the SHEV interview, which leads me to doubt the applicant’s credibility regarding a number of his claims.

    …

15.    The applicant’s evidence during the SHEV interview lacked detail, and was generalised, vague and unconvincing. There are also significant inconsistencies between the description given at the Arrival interview and the SHEV interview, including about when the subsequent visit by the SLA occurred. I consider the applicant has significantly embellished his account of these events over time to include repeated questioning and harassment by Sri Lankan authorities, the rape of his wife, and going into hiding…I am prepared to accept the applicant was stopped by the SLA in 2006 whilst driving between Vavuniya and Chettikulam, and that he was interrogated and mistreated at that time. However, I am not satisfied Sri Lankan authorities visited the applicant or his wife at home after that detention, or that he was beaten or his wife beaten and raped at that time, or that the applicant went into hiding as a result of these events.

    …

23.    The applicant consistently referred to having scars on his body resulting from being mistreated during interrogations by Sri Lankan authorities. Although the applicant has provided no medical evidence to support that his scarring is consistent with being tortured, given he consistently referred to having scarring, and I have accepted that he was mistreated by the SLA during an interrogation in 2006, I am prepared to accept that he has some scarring.

    …

33.    The applicant does not meet the requirements of the definition of refugee in s.5H(1). The applicant does not meet s.36(2)(a).

    …

38.    There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa).

13    The applicant filed an application for review of the IAA’s decision, including an application for an extension of time, on 3 March 2020.The ground of review was stated to be:

I do not believe my claims for refugee status were correctly considered and that the IAA’s conclusions concerning country information are irrational and not reasonable found on the basis of evidence.

14    The basis for the extension of time was the applicant’s lack of awareness that such an application could be made without the assistance of a lawyer.

15    Upon securing the assistance of a lawyer, the applicant filed an amended application on 29 October 2020. The amended application sought an extension of time and orders that the decision of the IAA be quashed and a writ of mandamus be issued requiring the IAA to determine the applicant’s application according to law. The amended application contained two grounds of review:

1.    The IAA has failed to take into account the full integers of the Applicant’s claim.

Particulars

The IAA has failed to take into account the full integers of the Applicant’s claim, namely that he was tortured – and scarred on his legs – during an incident where he was hanged upside down on a tree and his wife was raped.

2.    The IAA has made a decision so illogical or unreasonable that no reasonable person would have made it.

Particulars

The IAA, in failing to provide intelligible reasons as to why section 473DC of the Migration Act was not utlilized in order to consider the specific scars on the leg of the Applicant, has made a decision so illogical or unreasonable that [no] reasonable person would have made it.

16    The amended application for review came on for final hearing before the FCC on 2 November 2020 and Reasons for Judgment were delivered that same day. The applicant was represented by counsel and solicitors before the FCC.

17    The FCC dismissed the application for an extension of time. The primary judge found that (1) the length of delay in bringing the application, being 356 days, was substantial and had not been satisfactorily explained (Reasons [30]-[31]), and that, (2) at an impressionistic level, the grounds of the amended application lacked sufficient merit to warrant an extension of time under s 477 of the Act (Reasons [44]).

18    In forming his view on the merits of the substantive application, the primary judge correctly identified that the FCC’s task was to assess whether, at an impressionistic level, the substantive case has sufficient merit to warrant an extension of time (Reasons [44]): MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [21]-[23] citing with approval MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63]; Guo v Minister for Immigration and Border Protection [2018] FCAFC 34 at [27].

19    Ground One contended that the IAA had failed to take into account the full integers of the applicant’s claim, namely that he was tortured (and scarred on his legs) during an incident when he was hung upside down on a tree and his wife raped. As the primary judge observed, it is apparent from the IAA’s summary of the incidents, and particularly the findings to which the primary judge was taken in paragraphs 15 and 23 of the IAA’s reasons, that the IAA had not failed to consider the integers of the applicant’s claim as set out in Ground One (Reasons [39]). Rather, the IAA had dismissed the veracity of those integers.

20    Ground Two contended that, in failing to provide an intelligible reason as to why s 473DC of the Migration Act was not utilised in order to consider the specific scars on the legs of the applicant, the IAA had made a decision so illogical or unreasonable that no reasonable person would have made it.

21    Section 473DC of the Migration Act provides:

473DC    Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)    the Authority considers may be relevant.

(2)    The Immigration Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a) in writing; or

(b) at an interview, whether conducted in person, by telephone or in any other way.

22    The primary judge held that ‘at an impressionistic level’, Ground Two lacked sufficient merit to warrant an extension. The primary judge reasoned that in circumstances where the IAA was prepared to accept that the applicant was mistreated, and had some scarring as a consequence when he was detained in 2006, and in circumstances where the IAA had made an adverse finding about the incident in which the applicant claimed to have sustained the scarring, no relevant error was disclosed (Reasons [41]-[43]).

The applicant’s present application

23    By his originating application filed on 15 July 2021, the applicant contends:

1.    His Honour in the court below made a jurisdictional error by failing to give reasons for his finding that the applicant’s explanation for delay was unsatisfactory.

2.    His Honour in the court below made a further jurisdictional error by engaging in illogical and irrational reasoning, resulting in a decision on the underlying merits of the applicant’s case that was legally unreasonable.

The first ground

24    The first ground is particularised as follows:

His Honour in the court below found that the amended application seeking an extension of time met the requirements of s 477 of the Migration Act 1958. His Honour considered the contents of the application but did not regard the explanation for delay as satisfactory. His Honour gave no reasons for his finding that the explanation for delay was not satisfactory.

25    The FCC may extend the time limit for an application to be made if it is satisfied that it is necessary in the interests of the administration of justice to make the order (Migration Act: s 477(2)). In Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 Wilcox J set out a non-exhaustive list of factors to consider when deciding if it is in the ‘interests of the administration of justice’ to make an order extending the time for making an application. The factors Wilcox J set out include: the extent of the delay; the explanation for the delay; the prejudice to the respondents; and, the merits of the substantive application.

26    The applicant accepts that the delay of 356 days is significant but argues that the primary judge provided no reasons as to why the delay was unsatisfactory and, for this reason alone, the orders of the FCC should be set aside. The applicant contends that the primary judge failed to exercise judicial power by failing to make a decision, relying on the decision of McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. The applicant characterised the finding that the explanation for the delay was unsatisfactory as ‘arbitrary’. The applicant contended that an ‘arbitrary decision cannot be a judicial decision for the hall mark of a judicial decision is the quality of rationality … Without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision’ (Soulemezis at 278-9).

27    It is important to remember that time limits imposed by statutes or Court Rules are not merely ‘aspirational guidelines’. Once a time period for lodging an appeal has passed ‘the parties are entitled to assume that the litigation is at an end and that they may move on with their affairs’: BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 at [3]. See also the discussion in Parker v The Queen [2002] FCAFC 133 at [6].

28    The applicant bore the onus of establishing that there was a satisfactory explanation for what can only be regarded as a very long delay. The applicant was represented before the FCC and the affidavit purporting to explain his delay was prepared by a lawyer. Counsel for the first respondent sought leave to read an affidavit of Kate Martin, affirmed on 26 July 2021, to which is annexed the written submissions of the applicant before the FCC. The applicant objected to leave being granted on the basis of relevance. The submissions do no more than list, at the highest level of generality, the factors said to be explanatory of the delay. The submissions were prepared by junior counsel for the applicant in these proceedings. There is no prejudice to the applicant in granting leave. The written submissions do not advance any arguments put forward on the hearing of this application.

29    The primary judge held that he did not regard the explanation for the delay to be satisfactory (Reasons [31]). The applicant sought to find some support from the primary judge’s finding that ‘the amended application meets the requirements of s 477 of the Act’ (Reasons [30]). The primary judge continued, ‘insofar as seeking an extension of time under the relevant provision’. To the extent that the applicant sought to draw support from the first phrase only of the sentence, no such support can be found.

30    The primary judge articulated the sequelae of the applicant’s explanation for the delay as: his indigent circumstances; being unable to obtain legal advice; being subject to a period of imprisonment; having sought some counselling; some vision impairment; and language difficulties (Reasons [30]). The primary judge’s reasons disclose that he considered each of those sequelae but was not satisfied that they provided, either individually or taken together, an adequate explanation for the lengthy delay. No greater particulars of those sequelae, nor any specific explanation of how they were causative of the length of the delay, were put to the primary judge. The applicant does not submit that there were other matters which should have been considered by the primary judge but were not.

31    Soulemezis is authority for the proposition that in discharging a judicial officer’s duty to provide reasons for his or her decision in respect of findings of fact from which no appeal lies, it is sufficient that the ground for support of his or her findings, and not the detailed reasoning, is provided. As Mahoney JA, who formed the majority with McHugh JA, held (at 273):

…In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd, I pointed out that, even where there is no appeal, the provision of reasons may be required: I saw that deriving from the nature of the judicial process itself and, consequently, as being an incident of it. I meant by this that, in general terms, the giving of reasons is seen as part of the process of deciding a matter judicially rather than in the course of other and different forms of decision.

But, as I there said and was subsequently pointed out by Gibbs CJ in Public Service Board of New South Wales v Osmond, the provision of reasons is not expected in every case where a judicial decision is made. The reason why reasons will be required in one case and not in another will be determined by the nature of the case and what is done in it. The court's order is a public act. The judgment given for it is a professional document, directed to the parties and their professional advisers. It may, in a particular instance, delineate, develop or even decorate the law but that is peripheral and not essential to its nature.

There is, I think, no formula the application of which to the instant case will indicate what, in that case, the judge must do. 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 — to adapt the formula used in a different part of the law: see R v Associated Northern Collieries (1910) 11 CLR 738 at 740 — by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.

(emphasis added)

32    The identification of a general duty on the part of a judicial officer to give reasons says nothing about the extent of the reasons which must be given in particular circumstances; in this case, in relation to an application for an extension of time under s 477(2) of the Migration Act.

33    A factual situation similar to the present case was considered by Rares J in EMT18 v Minister for Home Affairs [2019] FCA 1501. In that case, the application for an extension of time was filed 41 days outside the 35 day period provided. The trial judge in EMT18 held (reproduced in EMT18 at [29]):

…The application for an extension of time complies with the formal requirement under s 477(2) of the Act and an explanation has been given for the delay in relation to the steps taken by the applicant to obtain legal advice and representation. The explanation for the delay which is not insignificant is not satisfactory. However, no particular prejudice in the present case is said to have been suffered by the first respondent by reason of the delay in the commencement of proceedings.

The merits of the application must also be taken into account at an impressionistic level. The Court must determine whether it is necessary in the interests of the administration of justice to extend time…

(emphasis in original)

34    In the face of a similar contention of jurisdictional error by the primary judge in that case, Rares J held (at [45]):

The mere fact that it could be suggested that his Honour had not taken into account all of the applicant’s explanation does not, of itself, demonstrate an error going to the exercise of the power to extend time, as Mortimer J explained in BVW17 v Minister for Immigration and Border Protection [2017] FCA 1508 at [57]-[64]. All that his Honour had to do was express a statement of his chief conclusions about the applicant’s explanation for his delay: Roy Morgan 207 CLR at 83-84 [26]. The omission of other matters from his Honour’s reasons was not a jurisdictional error: Craig 184 CLR at 186.

35    The applicant invited me to depart from the reasoning of Rares J in EMT18 on the basis that it is ‘plainly wrong’. The applicant submitted that his Honour appeared not to have the benefit of submissions arguing that Craig was concerned with the circumstance where a decision had been made by the primary judge and could not be applicable to circumstances such as these where the applicant contends the primary judge did not in fact make a decision. I do not accept that invitation. The decision in EMT18, which involved near identical circumstances as this case, was based on an orthodox application of Craig. As Rares J held (at [46]-[47]):

The statutory task for the trial judge here under s 477(2) was to consider whether the application had specified why the applicant considered that it was necessary in the interests of the administration of justice to make an order extending time and determining whether he was satisfied that it was so necessary in the interests of the administration of justice to make the order.

The applicant’s explanation in his affidavit in support of an extension of time included an inadequate and unsatisfactory explanation. I see no reason why his Honour had to do more than to summarise it as he did by noting that the applicant had taken steps to obtain legal advice and representation and that was why he [was] delayed.

36    Contrary to the submission of the applicant, the Reasons disclose that the primary judge considered the explanation for the delay as part of his task in assessing the statutory question under s 477(2), being why it was necessary in the interests of the administration of justice to grant an extension of time, which included assessing the strength of the grounds of review at an impressionistic level, which he did in the balance of his reasons. The decision of the primary judge was not made arbitrarily.

37    The first ground cannot succeed.

The second ground

38    The second ground is particularised as follows (errors in original):

Street J engaged in illogical and irrational reasoning in accepting the Authority’s approach to fact finding. The Authority rejected the applicant’s version of events that on one occasion Sri Lankan authorities came to his house, suspended him upside down and raped his wife in his presence on the basis of credibility. The applicant stated that scarring on his body was corroborative of his version this event and attempted to show the scarring to the interviewer but was refused. His Honour accepted the Authority’s reasoning that because it had rejected the applicant’s version of events on credibility, it was not required to assess whether the applicant’s scarring was corroborative of his version of events. The Authority’s reasoning, and his Honour’s acceptance of that reasoning, was illogical and irrational so that his Honour’s finding on the underlying merits of the applicant’s case was legally unreasonable.

39    The gravamen of the applicant’s contention is that the IAA engaged in illogical and irrational reasoning in not assessing whether the applicant’s scarring was corroborative of his version of events and the primary judge repeated that error. The applicant argued that, in failing to view the applicant’s scarring, the Tribunal had not taken the opportunity to disprove the applicant’s version of events, thereby leaving open the possibility that the scarring may corroborate his version of the facts. There is no substance to this ground.

40    In DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127; (2020) 382 ALR 246 at [68], the Full Court emphasised that ‘the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review’ (emphasis added).

41    The primary judge found, at an impressionistic level, that the IAA had not failed to provide an intelligible reason as to why s 473DC of the Migration Act was not utilised to consider the specific scars on the applicant’s legs. That finding was made in circumstances where:

•    at his Screening interview conducted on 16 May 2013, when asked to provide the reasons he had fled Sri Lanka, the applicant made reference to the war and the presence of inhuman activities in Sri Lanka before stating that as everyone was leaving his village, he and his family ‘just went along’;

•    at his Unauthorised Maritime Arrival & Induction Interview on 17 May 2014, the applicant made no claim of being hung on a tree, nor of his wife being raped, but alleged to have scars caused by a beating under a tree that occurred in 2006 after he was detained for one day on suspicion of transporting goods for the LTTE. In Q 75 of that Interview, the applicant indicated that he wanted to show the interviewer the scars he sustained on that occasion (emphasis added);

•    in his statement accompanying his application for SHEV, dated over 3 years later, 17 July 2017, the applicant claimed to have been tortured for 4 hours in 2006 after driving a truck from Vavuniya to Chettikulam. He stated that a couple of weeks later, the army tortured him again, hung him upside down on a tree, and beat him. He claimed to still have the scars on his legs. He also stated that his wife was raped in front of him;

•    in that same statement, the applicant stated that on one occasion in 2006, the Army officials came to his home and he was taken, tied to a tree and beaten while his wife was also assaulted. He claimed to still have visible scars on his legs from that incident;

•    the IAA accepted that the applicant has scars on his body but did not accept as credible the manner in which he claims to have obtained those scars (at p 6). The IAA said (at p 4-5):

I also find the applicant’s evidence in relation to the events that allegedly occurred in 2006 unconvincing. In particular, I noted a number of inconsistencies in his evidence presented at different times that undermine the credibility of these claims…

The inconsistencies in his claims were put to the applicant at his Protection visa interview. He was advised under s57 of the Act that these inconsistencies could be the reason or part of the reason for refusing to grant him a visa. The applicant was given an opportunity to comment. In response, the applicant stated that he previously had a diary wherein he had recorded the various events in his life and that since the time he has been imprisoned, he is not in possession of this diary and hence is unable to recall dates. He added that at the time of his Entry interview, he was scared and confused and that he had been told not to mention the LTTE. I reject this application.

42    The acceptance of the applicant’s claim to have sustained scarring from being mistreated by the Sri Lankan army provided an intelligible and evident justification for the IAA not exercising its discretionary power under s 473DC(3) to get ‘new information’.

43    The applicant submitted that the primary judge ‘engaged in irrational and illogical thinking in determining that even though the presence of scarring left open the possibility the claim was true, they did not have to observe the injuries because the claim was a priori, false’. This submission mistakenly assumes that the IAA would have asked the applicant a series of questions different from those he was asked in the event that the scars were viewed in person. However, the IAA had already accepted that the scarring arose from mistreatment by the Sri Lankan army. Indeed, it would have been absurd of the IAA to say ‘we believe you have scarring, but we would like to request further information in case we are wrong to believe you’.

44    Contrary to the submission advanced by the applicant, this is not a case in which there was a new dispositive issue before the IAA in relation to which it needed, but did not have, information from the applicant. The circumstances are different from those in Minister for Immigration Protection and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 in which the Full Court said, at [82]:

…the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate.

45    As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135], the question that needs to be asked in determining whether a decision was legally unreasonable is whether:

[on] the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

46    The arguments advanced by the applicant in this case do not go beyond a challenge to the merits of the evaluative exercise carried out by the IAA and do not warrant a finding of legal unreasonableness because of illogicality or irrationality in its reasoning: BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 at [330]. For a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘extreme’ illogicality or irrationality must be shown, ‘measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions’: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [148]; Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 at [52]; CGQ15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [60].

47    The decision record reflects that the IAA engaged with and made findings about the credibility of the applicant’s claims – accepting that he had been mistreated in Sri Lanka and had scarring to his legs as a consequence – but rejecting the manner in which he obtained the scars. Viewing the applicant’s scars could neither prove nor disprove the several claims the applicant had made relating to incidents that were said to have occurred variously between 1996 and 2007. For this reason there was an intelligible justification for the IAA not to have exercised its statutory discretion in s 473DC of the Migration Act to obtain further information in respect of the specific scars on the applicant’s legs.

48    The primary judge was correct to find, at an impressionistic level, that this ground lacked sufficient merit to warrant an extension of time, and that the primary judge did not engage in illogical or irrational reasoning in his approach to fact finding.

49    The second ground cannot succeed.

Conclusion

50    The applicant has failed to demonstrate any jurisdictional error on the part of the FCC. It follows that the application must be dismissed with costs.

Associate:

Dated:    9 August 2021