Federal Court of Australia

AZX21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 1379

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time in which to appeal is dismissed.

2.    The applicant pay the first respondent’s 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

DERRINGTON J:

Introduction

1    The application before the Court is for an extension of time in which to appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA). By that decision, the primary judge dismissed an application for judicial review in respect of a decision by the second respondent, the Immigration Assessment Authority (Authority), to affirm a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), to refuse to grant the applicant a protection visa.

2    By his application, the applicant also seeks leave to amend his proposed notice of appeal to advance, as his sole ground of appeal, a ground that was not agitated before the primary judge.

Application for an extension of time

3    The decision of the FCFCOA was handed down on 23 October 2023.

4    Pursuant to r 36.03 of the Federal Court Rules 2011 (Cth) (Rules), the applicant had 28 days (being until 20 November 2023) to file an appeal. No appeal was filed by that date.

5    On 2 January 2024, being some 43 days after the expiry of the appeal period, the applicant lodged an application for an extension of time to appeal. There was some question as to whether the period of delay was 43 or 47 days, but that is of no consequence.

6    It is generally accepted that the source of the Court’s power to extend time for the lodging of an appeal arises under r 1.39 of the Rules: AVC15 v Minister for Home Affairs [2019] FCA 1356 [20]. Whilst the power to do so is not subject to express limits, it is axiomatic that it should be exercised in a way that best promotes the overarching purpose of the civil practice and procedure provisions in the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) and the Rules.

7    It must always be kept in mind that extensions of time are not granted “for the asking”: GOK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 169 [29]. In this respect, in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 553, it was observed that a limitation period:

… represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated … A limitation provision is the general rule; an extension provision is the exception to it.

8    In broad terms, an extension of time should only be granted if the Court is satisfied that to do so would be in the interests of justice: AZAFF v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 176 [35] (AZAFF). The Full Court in that case summarised relevant considerations as being:

(1)    Whether there is an adequate explanation for delay;

(2)    The relative prejudice the parties may suffer if the application is allowed or disallowed; and

(3)    The merits of the proposed grounds of appeal.

Should an extension of time be granted?

The length of, and explanation for, the delay

9    The applicant’s affidavit evidence in relation to the length and cause of the delay was somewhat general. He initially appeared to contend in his evidence that he could not afford to pay the filing fee or the legal expenses necessary for him to commence the appeal. The evidence in that respect is undetailed, advanced at a high level, and conclusionary in nature. As was rightly pointed out by the first respondent, the applicant’s evidence is not supported by the type of material that might usually be expected on an application of this nature. The essential underlying background facts on which the conclusions are based are not disclosed. This type of evidence must be approached with caution.

10    In a subsequent affidavit, apparently filed in support of the application for leave to amend his proposed notice of appeal, the applicant explained that the real explanation for the delay was that he was dissatisfied with his solicitors after losing before the FCFCOA, and he began looking for alternative representatives to appear for him at no cost. There is, however, inadequate evidence that he was not able to afford to pay for solicitors, as explained above. Eventually he returned to his original solicitors, and they continued to act for him, at least to the extent of lodging the application for leave to appeal, albeit after the expiration of the appeal period.

11    Regardless of the vagueness of his excuses, it is now generally well accepted that a lack of legal advice is not itself considered to be an acceptable explanation for the delay in instituting an appeal: Tran v Minister for Immigration and Border Protection [2014] FCA 533 [35]. Further, an insufficiency of financial standing, contributing to an inability to pay a filing fee, is also not regarded as an acceptable reason. That is particularly so given the ability of persons of limited means to seek exemptions from paying filing fees: see reg 2.06 of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth).

12    Ultimately, the applicant’s excuses for failing to lodge an appeal on time are inadequate and, in the circumstances, the Court can only proceed on the footing that there was an unexplained delay of at least 43 days between the date of the expiry of the appeal period and the date of the lodging of the application for an extension of time in which to appeal. That is a not insignificant delay in the context of an appeal period of only 28 days.

Prejudice

13    While it can be accepted that the Minister would suffer no specific prejudice by the extension of time, that is, of itself, not sufficient to justify an extension: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 349. Indeed, the focus on the interests of justice means that in exercising the discretion to extend time the Court is not simply balancing the applicant’s interests against those of the respondent: BHP Billiton Ltd v Schultz (2004) 221 CLR 400, 421 – 422 [15].

14    It is well established in the authorities that there is also prejudice to the efficient administration of the Court when parties do not take advantage of the opportunity to commence appeals within the time prescribed. Those authorities also indicate that it is in the public interest that there be timely finalisation of migration proceedings: BZAGX v Minister for Immigration and Border Protection [2016] FCA 86 [5] – [6]. Whilst such sentiments are appropriate and aspirational, it is difficult to believe that such matters are truly taken into account by the courts or that, if they are, they carry any perceptible weight. Delays and, indeed, extensive delays are a hallmark of migration litigation in this Court. In each case and by the accumulation of many such cases there exists prejudice to the proper administration of justice and to the appropriate finalisation of migration decisions. Despite that, it would be remarkable to find more than a few cases where the resulting prejudice has had any impact on the issue of whether an extension of time is granted.

Merits of the appeal

15    On an application of the present kind the Court is required to assess the merits of any prospective appeal. Until recently, there had been debate about whether the Court should only review the merits at an impressionistic level or, alternatively, consider them in more detail. That question was resolved, albeit in relation to a different power to extend time, in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579, 591 – 592 [17] – [19] (Katoa), where it was held that, whilst it will often be appropriate to assess the merits of any proposed appeal at a reasonably impressionistic level, that does not preclude a court in a proper case from examining the proposed appeal in more detail. The Court does not necessarily misconceive the nature of its function by undertaking more than an impressionistic assessment of the merits of the proposed substantive application.

16    Necessarily, if it is concluded that an applicant has little or no prospects of success, it will seldom be in the interests of the administration of justice to grant an extension of time: MZABP v Minister for Immigration and Border Protection (2016) 152 ALD 478, 482 – 483 [21], 486 [38]. Conversely, if the applicant has a reasonably arguable case or better, it may be that an extension might be granted even in circumstances where the explanation for the delay is weak.

17    In this case, as a result of the complications associated with the applicant’s lately proposed amended notice of appeal, it is necessary to consider the merits of the proposed appeal in some detail. This approach is also appropriate where the application for leave and the appeal are heard together.

The merits

18    It is first necessary to articulate to some degree the background of this matter to illustrate how the applicant’s case has changed over time.

The applicant’s primary claim and the Authority’s decision

19    The applicant’s initial claim, being that which he advanced before the delegate and subsequently the Authority, was relatively straightforward. He contended that he came to the interest of the Sri Lankan authorities (the Criminal Investigations Department or CID) in 2012 because he was on the same soccer team as a person whom it appeared had previously undertaken four weeks of forced training with the Liberation Tigers of Tamil Eelam (LTTE). The applicant claimed that in consequence of his association with that person, the CID continually interrogated him about that person, though not on any account of a suspicion that he was associated with the LTTE. Nevertheless, he claimed that he was detained and abused throughout 2012.

20    The delegate rejected that claim. She concluded that it was implausible that, being three years after the end of the internal war in Sri Lanka in May 2009, the CID would continually detain and abuse the applicant when he had no personal or familial connections to the LTTE and only a slight connection to the person in his soccer team.

21    Following the delegate’s decision, the applicant’s claims expanded substantially.

22    In a statutory declaration dated 16 February 2021, for the purposes of a second hearing before the Authority (there had been a previous hearing before the Authority though the subsequent decision was quashed), he raised a new raft of claims which had not hitherto been mentioned by him or his lawyers. They included that:

(a)    the applicant’s father was involved in the LTTE;

(b)    the applicant had known the person in his soccer team (who was believed to be associated with the LTTE) for about four to five years;

(c)    the applicant’s former teammate had been in the LTTE for about two years and had been missing since approximately 2012;

(d)    on 29 April 2008, the applicant was forcibly recruited into the LTTE and underwent training for three months with the person who subsequently became his teammate in the soccer team;

(e)    following that training, the applicant served in the LTTE with his soccer teammate for a number of months and that involvement included hiding LTTE weapons;

(f)    towards the end of the war, the applicant escaped from the LTTE; and

(g)    the CID, during an interrogation which included beating and torture, stated that they knew that the applicant was in the LTTE.

23    The Authority undertook a comprehensive analysis of the applicant’s primary claims as they were advanced to it. As its extensive reasons reveal, the applicant was questioned by the Authority about his claims of having served in the LTTE. Those questions concerned his knowledge of the workings of the LTTE military and his claimed involvement in the Charles Anthony Brigade, said to be an elite infantry arm of the LTTE forces.

24    In its reasons, the Authority identified numerous inconsistencies and implausibilities in connection with the claims and rejected all material aspects of them. An important element of the Authority’s conclusion was the applicant’s failure to raise these matters previously in circumstances where he was able to do so or to adequately explain his previous failure to do so. In particular, the matters relied upon before the Authority were not raised in the initial application or initial interviews, nor at the initial Authority hearing.

25    The applicant’s original proposed notice of appeal advanced a number of grounds which were said to emanate from errors in the Authority’s reasons. They included alleged errors in fact finding relating to where the applicant lived in Sri Lanka during the civil war, where the applicant was located during the last days of the civil war and, particularly, whether he was in a war zone, whether he engaged in activities in support of the LTTE, and whether he effectively deserted from the LTTE during the last days of the war.

The new ground sought to be raised on appeal

26    Before this Court, the applicant seeks to advance another new case, asserting a new jurisdictional error which had not been advanced before the primary judge.

27    The problematic consequences of seeking to raise a new ground of appeal in this matter are exacerbated by the fact that it has been done after the Minister has filed written submissions directed to the initial draft grounds of appeal.

28    The sole ground of appeal now sought to be advanced is as follows:

The IAA made a finding for which there was no evidence or engaged in reasoning that did not have any probable basis, in relation to its conclusion that the applicant’s lack of knowledge about Claymore mine devices was inconsistent with his claims.

29    The precise nature of this alleged error was somewhat ambiguous, though it appears to be to the effect that the Authority’s conclusions were formed on the basis that a person in the position of the applicant would have been aware of the nature of Claymore mines, when there was no evidence that this was the case. This ground relies upon the Authority’s findings diminishing the applicant’s credibility based on his responses to questions relating to Claymore mines and their usage.

30    Subsequent to the applicant filing the proposed amended notice of appeal and supporting submissions, the Minister filed updated submissions addressing the new proposed ground of appeal.

Leave to raise a new ground for the first time on appeal

31    The indulgence sought by the applicant in relation to the raising of a new ground on appeal that was not advanced before the trial judge, should only be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588, 598 – 599 [46] – [48]. In reaching that view in that case, the Full Court relied upon the observations of a majority of the High Court in Coulton v Holcombe (1986) 162 CLR 1, 7, where it was said:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

32    That concern looms large in this case where there was no first instance consideration of the point now sought to be advanced on appeal.

33    The general principles relevant to the exercise of the Court’s discretion to allow a new ground to be raised for the first time on appeal were referred to in Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187, 193 – 195 [13] – [15] (Tohi), in the following terms:

13 The decision in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 (VUAX) has been regarded for many years as identifying the principles applicable to determining whether leave ought to be granted to an appellant to raise a new ground on appeal. The overriding rubric of whether leave to do so is in the interests of justice is well established. It is also well accepted that within the deliberative process of deciding that question certain, almost ubiquitous, issues arise for consideration. They include the following:

(1) That in the ordinary operation of the court structure, the substantial issues between parties to litigation are decided at trial. Leave is not granted merely for the asking and hearings before courts at first instance are not to be regarded as provisional: Coulton v Holcombe (1986) 162 CLR 1 at 7-8.

(2) Has the applicant for leave provided any adequate or acceptable explanation for why the ground was not raised below? This is a significant matter: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [166]. The fact that new counsel may have been engaged for the purposes of the appeal and has identified the new point is not, of itself, sufficient: BLX16 v Minister for Immigration and Border Protection [2019] FCAFC 176 at [31]; CSZ15 v Minister for Immigration and Border Protection [2017] FCA 706 at [11]; DKT16 v Minister for Immigration and Border Protection [2019] FCAFC 208 at [31] (DKT16).

(3) The making of a deliberate forensic decision in the hearing below not to take a point strongly militates against the granting of leave to advance it on appeal: DKT16 at [31]; Singh v Minister for Immigration and Border Protection (2018) 261 FCR 556 at [61]; Li Pei Ye v Crown Ltd [2004] FCAFC 8 at [79]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [38]. It may follow that, where the appellant demonstrates that the point was not taken below as a result of an oversight, the negative weight accorded to the omission will not be as great.

(4) Whether there exists any prejudice to the respondent in permitting the new ground to be agitated? Necessarily, where the new ground sought to be raised might have been met by evidence at trial, the need to accord the respondent procedural fairness will usually prevent leave being granted: SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 169 ALD 579 at [136]. Conversely, where the new point sought to be raised turns on a question of law or construction, or where the facts are not in controversy, leave is more likely to be given. Even then, if leave is granted, the consequence for the respondent is the removal of a right of appeal on the point with the remaining avenue for redress being the limited prospects of obtaining special leave to the High Court: Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 (Leota) at [44]; AAM15 v Minister for Immigration and Border Protection (2015) 231 FCR 452 at [14].

(5) The nature and extent of the prejudice which will be suffered by the appellant if leave is not granted will also usually be relevant. In migration appeals, this consideration can extend to persons associated with the appellant who might be affected as a result of an appeal being dismissed.

(6) The criterion of whether the proposed new ground has merit has been referred to as “an important consideration”: Maharjan v Minister for Immigration and Border Protection (2017) 258 FCR 1 at [33]; Leota at [43]. In NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30, the Full Court observed (at [31]) that, in common with the approach adopted in determining whether an extension of time in which to appeal should be granted, the determination of whether any proposed new ground of appeal has merit is assessed at a relatively impressionistic level, and the Court should not descend into a fuller consideration of arguments for and against each proposed new ground.

14 Although the above represent criteria which often fall for consideration in the determination of an application for leave to raise a new ground, the broadness of the overriding question of whether it is in the interests of justice to grant leave should not be overlooked. In MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 152, Allsop CJ said (at [2]):

… I refer to and repeat what I said in SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779 at [136] about leave to argue new points on appeal. The ultimate question is the interests of justice, which extend to the potential vindication of a just outcome, to which is relevant the seriousness of the consequences of the decision: cf Iyer v Minister for Immigration [2000] FCA 1788 at [22]. Whilst not intending to identify any error in the way Bromwich J helpfully summarised some of the cases in Han v Minister for Home Affairs [2019] FCA 331 at [10]-[18] care is always necessary in a discretion of this kind not to over-conceptualise or over-categorise matters, which, in any particular case, may be seen to affect the interest of justice, into categories of consideration to be applied as rules or as a set of rules.

15 Whilst his Honour’s observations are entirely correct and judicial discretions of the nature under discussion ought not to be constrained by artificial limitations, that does not suggest the absence of a principled approach to the exercise of the Court’s power which is likely to ensure coherency in its exercise and result in like cases being treated in similar ways. It may be that some of the categorisation to which the Chief Justice was referring included the observations of the Full Court in VUAX where it identified (at [48]) two circumstances which might be regarded as having a likely outcome. The first was that:

The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated.

The second was that:

Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

34    It is to be acknowledged that those views were expressed in dissent (as to the exercise of the discretion in that case). Nevertheless, the summary of the principles at [13] has subsequently been endorsed by the Full Court in AZAFF (at [35]) and in TGWR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 200 [21]. However, in view of the High Court’s decision in Katoa, it may be that the sixth point of that summary is no longer accurate or complete as a statement of the law: Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 140 [13] – [14].

35    The first consideration here is that the appellate court ought not be the forum for the determination of the substantial issues between the parties to litigation. That should occur at first instance, particularly where questions about the existence or availability of evidence are in issue. As the authorities referred to identify, leave to add a new ground is not one which is granted for the asking, and that emphasises that determinations by courts at first instance are not to be regarded as provisional. This is especially so in the present case where the Authority’s decision was extensive and detailed. The appellate court is entitled to have some analysis from the trial and resultant decision rather than undertaking the trial process itself.

36    The second and more important issue is whether an adequate explanation has been provided as to why the new ground was not raised below. In this context, it is relevant that the applicant was represented before the FCFCOA by solicitors, and one might expect that he received appropriate advice as to the grounds which ought to have been agitated in that forum. There is nothing in the evidence to suggest that the applicant’s former lawyers failed in their duty to analyse the evidence with which they were provided or that they were deficient in articulating the grounds of review which were most favourable to him.

37    It is of especial relevance that the evidence is silent on why the proposed new ground was not articulated. There is nothing on which this Court can be satisfied that the failure to take the point was not a forensic decision as opposed to being an oversight: Tohi at 195 – 196 [16], [17], [18(b)]. The applicant was represented before this Court and there is no evidence to the effect that he was unable to secure evidence in relation to that issue. The mere fact that new lawyers have been engaged for the purposes of the current appeal and have articulated a new point is not sufficient to provide an adequate explanation as to why the new ground was not advanced at first instance. The failure to provide an adequate explanation in this respect is a not insignificant hurdle to the granting of leave: Tohi at 196 – 197 [19].

38    A further difficulty raised by the Minister is that he may be prejudiced in dealing with the proposed new ground. The new ground relates to the applicant’s alleged involvement with an elite military force of the LTTE, being the Charles Anthony Brigade, and his role with that unit involving Claymore bombs. It appears that the argument sought to be advanced turns in part on the evidence which was before the Authority including information provided by the applicant and Country Information. Although some indication of the material that was before the Authority can be gleaned from its reasons, in circumstances where the Authority had no obligation to extract or refer to all of the evidence before it, there is difficulty in inferring that only the evidence referred to in its reasons reflects all that was before it.

39    The Minister also complains that the manner in which the Authority dealt with this new issue needs to be contextualised by reference to all the material before it with the result that had the proposed new ground been raised, the Minister may have sought to investigate all of the material before the Authority, including a transcript of the audio of the interview with the applicant and all Country Information in the Authority’s possession.

40    As a general rule, a party will not be permitted to agitate a new ground for the first time on appeal where there is “any possibility” that a respondent might have been able to meet the new ground were it raised at first instance: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424, 439 – 440 [37] – [38]. That principle has been reiterated by the High Court on a number of occasions where it has indicated that the strict application of the principle is necessary in the interests of the administration of justice: see Suttor v Gundowda (1950) 81 CLR 418, 438; Water Board v Moustakas (1998) 180 CLR 491, 497; Metwally v University of Wollongong (1985) 60 ALR 68, 71; Coulton v Holcombe (1986) 162 CLR 1, 7 – 8; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, 461 [51]. Moreover, if there exists any possibility of a new ground being met by evidence at first instance, there is a general presumption that the respondent will suffer irremediable prejudice if the ground is allowed: NAJJ v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51, 68 [77] – [78].

41    On the hearing of the application the applicant submitted that the Minister was in possession of the recording of the interview between the Authority and the applicant, such that he was in the position of identifying all of the relevant evidence from that hearing that might be relevant to the new ground. However, the Minister carries no onus to establish that he is able to search through the available evidence and attempt to respond to any factual issue raised by the new ground. The discrimen is whether there is a possibility that the ground sought to be raised could be met by new evidence. If there is, the Court will necessarily be reluctant to allow the new ground to be raised, lest the appeal court become the primary forum for the determination of disputed questions of fact and the party opposing leave be placed in a difficult position.

42    In addition, the Minister would suffer the prejudice of being denied one level of appeal if the point is decided against him. In reality, where the next avenue is an application for special leave to appeal, the Minister will likely be denied any rights at all: see ss 24, 33 of the Federal Court Act; Tohi [18(c)].

43    It is also relevant that the abandoning of all other grounds of appeal and reliance on the new ground comes at a very late stage of the proceedings. As mentioned, it followed the filing of written submissions by the Minister which dealt with the previously proposed grounds of appeal. No explanation has been given for the lateness of the proposed amendments.

44    It was also submitted for the applicant that there is a particular sensitivity in refugee cases to whether the interests of justice favour the grant of leave, because an adverse decision may have very serious consequences for the applicant: CGA15 v Minister for Home Affairs (2019) 268 FCR 362, 372 [36]. That may be so, but it is not a freestanding consideration and really amounts to according heightened importance to the consideration of the merit (if any) of the proposed new ground: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51, 85 – 86 [166] – [175].

The merits of the proposed new ground

45    The new ground sought to be advanced is seemingly based upon illogicality or irrationality or a lack of evidence. The finding under attack is one of a number which the Authority made in reaching its conclusion that the applicant had not satisfied it that he had served in the LTTE and as a member of the Charles Anthony Brigade.

46    In analysing this ground, it is apt to keep in mind that the courts generally exercise considerable caution when faced with a claim of illogicality or irrationality given that they can be used to conceal what is in truth simply an attack on the merits of a decision-maker’s finding: Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, 221 – 222 [56]. It should also be kept steadily in mind that the threshold standard to establish illogicality or irrationality is “very high”: MZYOI v Minister for Immigration and Citizenship (2012) 130 ALD 256, 283 [165]. Further, it is often said that the Court should not lightly be satisfied of the existence of illogicality or irrationality, which is only made out in cases where there exists what is termed “extreme” illogicality or irrationality: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496, 517 – 518 [60] – [61] (CQG15). The reference to “extreme” carries the implication that the decision under consideration is one that no logical or rational decisionmaker could come to: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 647 – 648 [130] – [131] (SZMDS). That necessarily excludes cases where logical and rational minds can differ as to the outcome.

47    Moreover, and importantly in this case, the relevant illogicality or irrationality must arise at the point of the ultimate decision made: SZMDS at 647 [129]. Whilst some illogicality in fact finding might occur, if a reasonable decision-maker could reach the same conclusion by a different route, it is unlikely that the resulting decision is irrational.

48    Therefore, a finding that such an error infected the factual determination reached along the way to the ultimate decision will usually only result in jurisdictional error where it is critical to the ultimate conclusion or end result: CQG15 at 517 – 518 [60] – [61]; CRU18 v Minister for Home Affairs (2020) 277 FCR 493, 505 – 506 [35] – [36].

Background to the issue being raised

49    It is relevant that, despite a long procedural history (including a prior quashing of a decision of the Authority), the applicant first raised as part of his claimed relationship to the LTTE that he was involved as part of a special unit known as the Charles Anthony Brigade, as part of the process leading to the second decision by the Authority. He claimed that the Charles Anthony Brigade was an elite unit whose members had special training for battle, and that he was recruited into it and given specialised training in Claymore bombs. He further claimed that he became part of a special team within the Charles Anthony Brigade as a result of his specialised training.

50    The Authority’s decision recites a long and detailed summary of the questioning of the applicant before it in relation to his alleged involvement with the LTTE and the activities which he claimed to have undertaken. Part of that discussion included a recital of the applicant’s evidence in relation to Claymore bombs. After the applicant raised the proposition that he was part of a special four man unit with a specialisation in Claymore bombs, he was asked to explain what one looked like. The recorded response is as follows (at [73]):

… I asked the applicant to explain what a Claymore looked like. He said there were two types and that one could be controlled with a remote, and the other was controlled with wires. He said that they would dig a pit in the road and that it came in a wooden box and that that they would dig a small pit in the road, and it came in a wooden box, and they would put it in the road so it was concealed and not noticeable, and that they would be at a distant spot in the jungle and would connect the wires so that when the vehicle came they would activate the timing. I asked the applicant if he was saying he would bury the Claymore. He said he did to conceal it. I asked the applicant again to describe what the Claymore looked like visually. He said that the box was a certain size and kept in a timber box, and that it is set in such a way that there were two wires that needed to be connected, and inside the box were bombs that required this connection with wires. …

51    The description given of a Claymore bomb obviously did not coincide with the type of anti-personnel mine specifically known as a “Claymore mine” of which the Authority was aware. After acknowledging that it had been reported that the LTTE had used Claymore bombs against vehicles, the applicant was advised that his description of Claymore bombs did not correlate to the usual description of the weapon. It was said (at [74]):

… However, I put it to the applicant that he did not seem to be aware that the Claymore device was a flat concave device with thick metal at the back, and on the front was printed “front toward enemy”, and that it has four legs and sits freestanding above the ground, and that its primary use for an infantry unit would be within its defensive perimeter as an anti-personnel mine. …

52    The applicant’s response to this was described in the following terms:

… The applicant responded that it was true that it was used in defence but toward the latter part (of the war) the decision was made to use the device to destroy vehicles.

53    Thereafter, there was some discussion about whether the Claymore mine was used only as an anti-personnel weapon or was also used for damaging infrastructure.

54    In its reasons, the Authority recorded that it received further information from the applicant’s legal advisers which the applicant said needed to be considered. In particular, it was said that the applicant could not be expected to have a detailed knowledge of Claymore mines, as had been raised during the course of the interview with the Authority. Included in an email from the applicant’s solicitors on 15 March 2021 was the statement:

… Training and weapons training was done in secret. The term claymore, was used as it was a bomb similar to the US made claymore bomb that the reviewer was referring to. Specifically the LTTE did not use trade mark names but their own names as mentioned in the articles below. …

55    The email attached certain articles which referred to the SN96 mine, being a Chinese imitation of a Claymore mine, and it was indicated that the LTTE used such mines throughout the northern part of Sri Lanka. One article specifically identified that the LTTE used the SN96 (Claymore-type mine) and it included a picture of one which fitted the description used by the Authority in its questioning of the applicant. Indeed, the description of it identifies that the SN96 was produced by the LTTE and had the usual words “Front Towards Enemy” written in Tamil on it. The article also referred to the small wooden box bomb produced by the LTTE which was referred to as a “Jony” mine.

56    In further information sent to the Authority on 18 March 2021, it was said by the applicant’s solicitors that the applicant did not use the trademarked Claymore mines produced by America, but that they obtained similar weapons from other countries. It was also clarified that the applicant saw a bridge destroyed by the use of multiple Claymore mines but that he was not in the team that blew it up. It was also clarified that the bridge was not a major one, but one made out of wood and metal sheets. These factors were recorded at [75] of the Authority’s reasons.

57    After considering the above matters the Authority held (at [76]):

I accept that a person who served with the LTTE in the circumstances claimed by the applicant cannot be expected to have detailed technical knowledge about such devices. But I would expect such a person to be able to at least describe the basic appearance and manner of use of such a device. I accept that it is true that in Sri Lanka the name Claymore is sometimes used generically for any command-wire explosive device, including home-made improvised explosive devices IEDs (such that Sri Lankan media reports of a “Claymore attack” might not necessarily have involved a device like the SN96). But even so, if the applicant had, as he claims, been attached to a four man team in the Charles Anthony Brigade which specialised in Claymore attacks (even if for less than a year and with little training), it is difficult to believe that he would be unaware of the distinction between the generic use of the term Claymore, and its more specific being the name of the weapon which within the LTTE arsenal was the SN96. It is also difficult to believe that a person who had been part of such a team would not (when asked about the appearance and purpose of a Claymore device) have volunteered and emphasised a description of the SN96, and that such a person would not volunteer that such a device was deployed above ground in defence of an infantry unit’s perimeter (and the Charles Anthony Brigade was an infantry unit). Given this, I have not found the applicant’s evidence about these matters persuasive.

(Footnote omitted).

The complaints about the Authority’s findings

58    Part of the applicant’s case was that the material on which the Authority relied in relation to the use by the LTTE of Claymore-type mines, was insufficient to establish that he could have been expected to know of them. It was submitted that because the LTTE did not use such mines, it was not unexpected that he was not aware of their technical features and of the uses to which they were normally put.

59    In relation to this point, the Court was taken to some of the Country Information referenced by the Authority. It was said that all that the Country Information indicated was that a Claymore bomb used by the LTTE was not similar to a Claymore mine produced by the United States. In the Country Information, the following footnote stated:

A claymore mine is a remote-controlled, directional, anti-personnel mine designed for use in ambushes. Strictly speaking, “Claymore” is a brand-name for a specific US produced device, however it seems that in the Sri Lanka context claymore is used generically for any command-wire explosive device, including home made IEDs.

60    To the extent to which it was submitted that the material before the Authority did not sufficiently identify the nature of Claymore mines as opposed to improvised explosive devices which were also used by the LTTE, and that the applicant could not have been expected to know of the difference, that submission should be rejected.

61    As appears at [74] of its reasons, the Authority put to the applicant that he did not seem to know what a Claymore mine was as it was described to him. His response was that “it was true that it was used in defence but toward the latter part (of the war) the decision was made to use the device to destroy vehicles”. That answer was identified as being indicative of his lack of understanding of the nature of an American Claymore mine or a Claymore-type of mine (being the SN96) and their use. The alleged illogicality or irrationality is that the Authority proceeded on the basis that a member of a specialist explosives group within the Charles Anthony Brigade would have known of the nature and use of a Claymore mine, whereas the Country Information established that the Claymore bombs used by the LTTE were effectively self-produced improvised explosive devices and the expression “Claymore” was used as a generic expression to cover remote or hardwired detonation devices. On that basis, so it was said, the Authority’s criticism of the applicant was erroneous.

The Authority’s conclusions were not illogical or irrational

62    That description of the Authority’s reasons by the applicant is incorrect.

63    The additional material provided to the Authority by the applicant’s own solicitors revealed that the LTTE used Claymore type mines in the form of the SN96 mine, which were of the exact nature as described by the member of the Authority in the interview. The email of 15 March 2021 states that the reference by the applicant to a “Claymore” was to a “bomb similar to the US made claymore bomb”. It was said that the LTTE did not use the American Claymore mines but similar ones in the different names as identified in the articles attached to that email. Those articles referred to the LTTE using the SN96, which was all but identical to the Claymore mine as the included picture identifies. Words to similar effect were used in the information attached to the email of 18 March 2021.

64    It follows that there was Country Information before the Authority that indicated that the LTTE used Claymore type mines, being the SN96 mine. In these circumstances, there was nothing surprising about the Authority’s finding at [76] of its reasons that the applicant should have been aware of the distinction between the generic use of the term, “Claymore”, and of the description of the SN96 as used by the LTTE, as well as its specific above-ground use. As it said:

… It is also difficult to believe that a person who had been part of such a team would not (when asked about the appearance and purpose of a Claymore device) have volunteered and emphasised a description of the SN96, and that such a person would not volunteer that such a device was deployed above ground in defence of an infantry unit’s perimeter (and the Charles Anthony Brigade was an infantry unit). …

65    When it is realised that the SN96 was used by the LTTE, the applicant’s complaint falls away. In the discussion of explosive devices, it was certainly a matter of remark that the applicant was not aware of the SN96 which the member of the Authority had described.

66    The applicant also submitted that there was no evidence that the SN96 was used by the Charles Anthony Brigade, as opposed to the LTTE more generally. However, that can be easily rejected. The Charles Anthony Brigade was part of the LTTE forces, and it is an easy inference to make that an infantry unit of the armed forces would use the type of anti-personnel devices which were generally used by the armed forces. One might wonder which other branch of the LTTE armed forces would use them, if not the infantry. Even if it supposed that another decision-maker might not draw the same inference, that would not amount to illogicality or irrationality.

67    Rather than the Authority’s conclusions in this respect being illogical or irrational, the contrary is true. When the context is appreciated, as was made clear by the material provided by the applicant’s own solicitors, the Authority’s concerns are vindicated. It was entitled to put to the applicant the nature of a Claymore mine (or Claymore-type mine) to test him in relation to his claimed familiarity with the weaponry regularly used by the LTTE. His lack of knowledge about the Claymore mines or the imitation SN96 mines and their use justified its doubt that he had the experience which he claimed that he did. The Authority’s conclusion that this led to the applicant’s evidence not being persuasive was the logical and rational conclusion from the material.

68    It follows that there is no substance in the applicant’s proposed new ground of appeal. When properly analysed, there is no illogicality or irrationality in the Authority’s reasoning or conclusions.

Understanding of the Country Information

69    The applicant also submitted that the Authority misunderstood what had been conveyed by the Country Information before it concerning the use of the name “Claymore” in relation to the LTTE forces. At [76], it said:

… I accept that it is true that in Sri Lanka the name Claymore is sometimes used generically for any command-wire explosive device, including home-made improvised explosive devices IEDs20 (such that Sri Lankan media reports of a “Claymore attack” might not necessarily have involved a device like the SN96). …

70    The footnote reference given in the Authority’s reasons was to:

OHCHR, “Report of the OHCHR Investigation on Sri Lanka (OISL)”, A/HRC/30/CRP.2, 16 September 2015, 16 September 2015, CISEC96CF13358, p.15, n.12.

71    Though the footnote reference appears to be in error and should refer to footnote 13, it was submitted that the report did not indicate that the expression was only “sometimes” used to refer to the devices described. With respect, such a submission descends well into merits review, including a minute analysis with an eye attuned to error. Nevertheless, on the material, the Authority’s conclusion was correct. When consideration is given to the information provided by the applicant’s solicitors, it is clear that on some occasions the expression “Claymore bomb” was used as a reference to the imitation Claymore mine or the SN96. The conclusion that the use of the expression “Claymore” in the context of the LTTE’s weaponry did not definitively refer to homemade IEDs was correct on the material available to the Authority.

No illogicality or unreasonableness

72    It follows that the applicant’s proposed ground of appeal has no possible chance of succeeding. Fundamentally, it proceeds upon a misunderstanding of the material before the Authority.

There was no critical illogicality or irrationality in any event

73    Even if the above conclusion is wrong, the findings made by the Authority were in relation to a particular issue, being the applicant’s claimed expertise in relation to Claymore mines. The applicant’s inability to independently distinguish between the Claymore mine and the mines which he claimed to regularly use or his lack of awareness of the distinction, was one of a number of concerns the Authority had with his evidence concerning his involvement in the Charles Anthony Brigade.

74    The Authority identified myriad other difficulties with the applicant’s evidence which the Authority assayed at [59] to [111] of its considered reasons. They included numerous other findings which negatively impacted his credibility in substantial ways. In this respect the making of the alleged error, if it occurred, was not one which could be said to be “critical” to the outcome. In XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131 [63] – [64], the Full Court considered the impact that an error of illogicality in the making of a finding of fact might have on the ultimate decision:

63    For present purposes, it is sufficient to note that a finding of fact made without a “skerrick” of evidence will amount to an error of law: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [91] (Hayne, Heydon, Crennan and Kiefel JJ); Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [575] (Weinberg J); Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-356 (Mason CJ). Whether such an error of law amounts to jurisdictional error will depend on the nature and significance of the finding of fact. On any view, in order to amount to jurisdictional error, the relevant finding must have been at least a “critical step” on which the ultimate decision was based, if not a precondition to the exercise of jurisdiction: see e.g. SZMWQ v Minister for Immigration and Citizenship (2010) 187 FCR 109 at [125] (Flick J, Besanko J agreeing); Australasian Meat Industry Employees' Union v Fair Work Australia (2012) 203 FCR 389 at [92] (Flick J); cf. Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at [39] (Gummow and Hayne JJ, Gleeson CJ agreeing).

64    In this regard, it is worth noting that the ground of appeal on which the appellant relies alleges jurisdictional error on the basis of legal unreasonableness, namely, that the Tribunal erred by making a finding that was legally unreasonable because it was without a probative basis. An absence of evidence or a lack of logical grounds for a particular finding or inference of fact might be such that “it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically and rationally on the available material”: see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [35] (Allsop CJ, Besanko and O'Callaghan JJ). However, any such irrationality in the course of making a particular finding of fact would only amount to jurisdictional error if the fact was “critical” to the ultimate decision: see Masi-Haini v Minister for Home Affairs (2022) 298 FCR 277 at [54] (Markovic, Meagher and Kennett JJ).

75    Those observations are apt to cover the circumstances of the present case. The alleged error related to one aspect of the applicant’s claim to have been a member of the LTTE. The Authority considered the many other aspects of that claim and ultimately did not believe it. In this sense, the alleged error could not be said to have been “critical”.

76    Similarly, it is well accepted that where the impugned finding is but one of a number of other findings that may independently have led the Authority to its ultimate conclusion, jurisdictional error will generally not be made out: CQG15 at 517 – 518 [60]. That alone is a reason for rejecting the suggestion that any alleged error in the finding constituted a jurisdictional error. Here, the careful and thorough reasons of the Authority set out a number of independent reasons as to why the applicant’s claim that he was a member of the LTTE would have been rejected, and the Authority may well have reached the determination that the application should be refused for a number of different reasons.

Any alleged illogicality or irrationality would not be material

77    Moreover, the Authority concluded that, even if the applicant had been a former LTTE combatant, he would not be of adverse interest to the Sri Lankan authorities. It found (at [108]) that the material as a whole disclosed that the Sri Lankan authorities had “little interest” in actively pursuing former LTTE combatants. Although the applicant cavilled with the expression “little interest”, it is clear that the Authority had concluded that the applicant would not be troubled by the Sri Lankan authorities should he return there.

78    For that reason as well, if there were any illogicality in the Authority’s conclusion that the applicant was not a former member of the LTTE, it would not be of any consequence. On the basis of the Authority’s latter finding, it could not be said that there was any possibility that the decision could have been different. It follows that it would not be material and would not constitute a jurisdictional error.

79    In the result, the new ground raised by the applicant lacks any sufficient merit.

No leave to raise a new ground

80    The circumstances of this case render it inappropriate to permit the applicant to raise the proposed new ground of appeal. It has no merit or, if it has any, it is insufficient. The circumstances surrounding it being raised at this late stage of the proceedings on appeal and, not being raised below, were not adequately explained. Consequently, no leave should be given to raise the point now.

Extension of time

81    The applicant has abandoned all of the grounds of appeal and the proposed new ground is disallowed. Therefore, there would be no merit in extending time for the filing of the appeal.

82    In those circumstances, the application to extend time should be refused.

Result

83    Given the foregoing, the application for an extension of time in which to appeal is dismissed.

84    The applicant should pay the first respondent’s costs of the application.

Associate:    

Dated:    4 December 2024