Federal Court of Australia

BHW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 906

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time to appeal from the decision made on 4 February 2022 by the Federal Circuit and Family Court of Australia (Division 2) is dismissed.

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

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

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant is a citizen of Sri Lanka, of Tamil ethnicity. He seeks an extension of time to appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) (Circuit Court). On 4 February 2022, that court dismissed an application for judicial review of a decision of the Immigration Assessment Authority to affirm a decision by a delegate of the first respondent (Minister) to refuse a protection visa to the applicant.

2    The applicant needs an extension of time because he filed this application 504 days after the time fixed for an appeal in r 36.03 of the Federal Court Rules 2011 (Cth). He also seeks leave to raise, as grounds of appeal, criticisms of the Authority's decision that were not made before the primary judge.

3    The Minister opposes an extension of time and leave to advance new grounds. The Authority, as the second respondent, has filed a submitting notice.

4    For the following reasons the application for an extension of time will be dismissed, with costs.

Principles

5    In BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33], Yates, Wheelahan and O'Bryan JJ summarised the principles applicable to applications for extensions of time to appeal in a migration context as follows (most citations removed):

(a)    Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored.

(b)    There must be some acceptable explanation for the delay.

(c)    Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension.

(d)    The mere absence of prejudice to the respondent is not enough to justify the grant of an extension.

(e)    The merits of the substantial application are to be taken into account in considering whether an extension is to be granted. Leave will not be granted where there are no reasonable prospects of success on the appeal. The applicant will have no real prospects of success where the case is devoid of merit or clearly fails; is hopeless; or is unarguable. In making an assessment the Court is not required to go into too great a detail, but is to 'assess the merits in a fairly rough and ready way': Jackamarra v Krakouer (1998) 195 CLR 516 at [7]-[9].

(f)    The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties. Special circumstances often arise in immigration cases. Where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted. This will be so particularly if the applicant is in immigration detention, requires the assistance of an interpreter and has limited knowledge of law and practice including the time for any appeal. Further, where an applicant is an asylum seeker, the gravity of the circumstances that may confront him or her may be a reason for not applying the time rule too strictly. Nevertheless, the merits of the appeal will remain a relevant factor.

6    There is a significant public interest in the timely and effective disposal of litigation, and delays in dealing with applications for protection visas are to be avoided if possible: Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929 at [62] (Gyles J). The length of the delay will affect the persuasiveness of the case required in order to justify a grant of leave: see Jess v Scott (1986) 12 FCR 187 at 195 (Lockhart, Sheppard and Burchett JJ).

7    Given the conclusions I have reached as to the extension of time, it is not necessary to set out the principles that apply when leave is sought in an appeal to rely on grounds that were not advanced before the primary judge.

The applicant's delay here and the explanations given for it

8    At over 500 days, the length of the delay here is unusually long, and it would need to be persuasively explained in order not to weigh heavily against the exercise of the discretion to extend time. But the applicant's explanation here leaves much to be desired.

9    The applicant relies on an affidavit he affirmed on 21 July 2025 as providing an explanation of his delay. The explanation commences with evidence that the applicant cannot read or write in English - he does not say that he cannot understand spoken English.

10    According to the applicant, when he was taking judgment on 4 February 2022, apparently by way of an audio link with the assistance of a Tamil interpreter, the applicant asked the primary judge whether he could 'appeal for the second time to the High Court'. He mentioned the High Court because he did not know the correct terminology or the court appeal process.

11    The transcript of the judgment hearing shows that the following exchange occurred:

THE INTERPRETER: Can I apply for the second time to High Court?

HER HONOUR: There are options for you to appeal, but I cannot give you advice on your appeal rights.

BHW17: Okay.

THE INTERPRETER: Okay.

12    The applicant's evidence in this Court is that, despite what the transcript shows 'the interpreter interpreted that I could not appeal for the second time … I can still clearly remember that was what the Interpreter told me - that I could not appeal for the second time and told me that I had to return to my country'.

13    Other than to say that he was very upset, the applicant does not then say in clear terms what consequence, if any, receiving that apparent advice had. In terms of the steps he took, his evidence is: 'After I recovered from this upsetting time, a friend of mine told me to see Tamil Sangam, WA (Tamil Association)'. The Tamil Sangam wrote to the Minister on the applicant's behalf on 21 September 2022, and the applicant says that it took a week for this to happen, so he must have seen them around the middle of September, more than seven months after the primary judgment was delivered.

14    A delegate of the Minister responded, unfavourably to the applicant, on 23 February 2023. The applicant's bridging visa was due to expire on 13 April 2023. The Tamil Sangam advised him, apparently around that time, to see his current solicitors. But the solicitor he needed to see, Ganasan Arujunan, was overseas until May 2023, and Mr Arujunan advised that the applicant would need to brief a barrister, who in turn advised in early July 2023 that there were grounds to appeal.

15    An explanation has been given for the lapse of time of nearly two months between the time when Mr Arujunan came back from overseas and the lodging of the application. Mr Arujunan has provided an affidavit confirming that he returned from overseas at the beginning of June 2023. He prepared a transcript of the Safe Haven Enterprise Visa interview with the applicant on which the delegate's decision was based (commonly known as the SHEV interview) and sent it to the barrister, Matthew Crowley, who prepared draft grounds of appeal by the end of June 2023. It took Mr Arujunan another two weeks to seek and obtain the transcript of the judgment hearing before the primary judge. This application was lodged on 21 July 2023.

16    The Minister submitted that I should not accept the applicant's evidence that at the judgment hearing the interpreter told him, in effect, that he could not appeal from the primary judgment. But the Minister did not seek to cross-examine the applicant on his evidence, so I will proceed on the basis that the applicant's evidence in that regard is to be accepted. That is a rule of fairness that binds the Court as much as it binds an opposing party: see MWJ v The Queen [2005] HCA 74 at [37]; Macks v Viscariello [2017] SASCFC 172; (2017) 130 SASR 1 at [471].

17    Nevertheless, even after finding that the mistranslation occurred as the applicant says it did, much in his explanation of the delay is unsatisfactory. It may be accepted that for a person whose first language is not English, and who did not have legal representation, the mistranslated statement caused some temporary confusion. But as has been mentioned, the applicant (who was legally advised by the time of the drafting of his affidavit) has not given any direct evidence to the effect that it deterred him from seeking assistance to prepare an appeal, or for how long he was so deterred.

18    As the Minister points out, that is in a context where the applicant had already successfully appealed to this Court from an earlier decision of the Circuit Court dismissing an application for judicial review of an earlier decision of the Authority. This was the applicant's second time around. So it is by no means self-evident that, even unrepresented as he then was, the mistranslation would explain the lapse of seven months between the primary judge's decision and the applicant seeking assistance from the Tamil Sangam. In that context, the applicant says only that he was very upset for an indeterminate time. The lapse of time of seven months is therefore not satisfactorily explained.

19    Also not satisfactorily explained is the lapse of a further seven months or so between the sending of the letter to the Minister and the applicant being told to see the firm of solicitors which now represents him. Again, the applicant's own evidence does not draw any causal connection between the letter and the delay. And even if it is inferred that the applicant hoped to receive a favourable response from the Minister, he (and Tamil Sangam) must have known that hope was all it was. That does not immunise a prospective appellant from the running of time for the purposes of provisions such as r 36.03 of the Federal Court Rules. The inference is open that the applicant only sought legal assistance once his visa was expiring. I do not need to make that inference, however, to say that the explanation of this second seven month block of time is not satisfactory.

20    As for the lapse of time after Mr Arujunan was instructed, it is not abundantly clear why the matters set out in Mr Arujunan's affidavit required nearly two months to resolve after his return from overseas, in circumstances where the applicant's legal advisers must have known that he already needed to explain an extremely long delay, where every additional day would count. Nevertheless, since Mr Arujunan has provided specific evidence explaining the steps he took between his return from overseas and filing the application, I do not place weight on the delay between his return and the filing of the application.

21    But that still leaves a delay of some 14 months - approximately 430 days - which has not been satisfactorily explained. This weighs heavily against any extension of time. Even allowing for the importance to protection visa applicants of the subject matter of their appeal, and even allowing for the applicant's position during that time as a litigant in person unfamiliar with English, there must be some limits to the court's indulgence.

The merits of the proposed appeal

Proposed ground 1

22    Proposed ground 1 is:

1.    The learned primary judge erred in not finding that the second respondent constructively failed to exercise jurisdiction by not dealing at all with an express claim to protection by reason of fatal 'injection' given to Tamil returnees, or by reason that the second respondent was disabled from fulfilling its review by the Secretary's failure to give the 'review material' required to be given under s 473CB(1).

Particulars

1.1    At interview, the appellant gave the delegate written country information directed to claims that the authorities were 'injecting' returnees temporarily detained at the airport or in camps and who later die, referring to a cohort of 150 examples in 2016 of which the appellant claimed he would be one. The second respondent did not deal at all with this express claim.

1.2    Nor did the Secretary give the country information or any statement or other material recording the contents of the material that the delegate expressly acknowledged at interview.

23    The transcript of the SHEV interview that is annexed to Mr Arujunan's affidavit shows that when the applicant was asked what he thought would happen to him if he went back to Sri Lanka, he replied:

I would be detained at the airport, I can be detained in the camp. I would be detained at the airport, and I can be placed in the camp and the current trend that's happening in Sri Lanka is a quiet treatment - meaning people are given injections - the returnees are given injections, they let the people go into the community. People who have been detained by the army and released into the community are seems to be dying within 5 months of the date of release.

24    In follow up questioning, the applicant said that he had media reports of that 'trend' with him, and it appeared that he showed some reports from a website tamilwin.com to the delegate. When asked later what he believed would happen to him when he got off the plane back in Sri Lanka, the applicant said similarly:

I will be taken in. There is a section at the airport where the CIDs are present or placed. The moment they see my name and all that I would be taken into their custody. I do not know whether or not they will let me go or they will detain me, or they would inject something into me which is commonly happening now.

(The reference to CID is the Criminal Investigation Department.)

25    The applicant's complaint under proposed ground 1 is that the Authority did not deal with his claim that the Sri Lankan authorities would inject the applicant at the airport or in a camp.

26    It is true that the claim received no mention in the Authority's reasons. But that could only amount to jurisdictional error if the claim were based on probative evidence: see the discussion in FIG17 v Minister for Home Affairs [2019] FCA 1105 at [86]-[90]. The applicant's claim in the SHEV interview, with respect, sounds far-fetched and there appears to have been no material before the Authority to support it.

27    The applicant seeks to meet this by including within his proposed grounds a contention that the Authority's decision was affected by jurisdictional error because the Secretary of the Department did not give it the material the applicant provided in support of the claim, being the articles on tamilwin.com: see EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20; (2019) 268 FCR 299 at [42]. The relevant obligations of the Secretary, under s 473CB of the Migration Act 1958 (Cth), were to give the Authority 'material provided by' the applicant to the delegate 'before the decision was made' (s 473CB(1)(b)) and 'any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review' (s 473CB(1)(c)).

28    It can be inferred that if any article supporting the applicant's claim were in the Secretary's possession, that is, on the applicant's file, it would have been provided to the Authority. It is unlikely that the Secretary would have gone out of its way to remove any such article from the file before providing it to the Authority. The transcript of the SHEV interview does not indicate that the delegate retained a copy of the article or articles; the delegate asked only that the applicant show them to the delegate. It is not clear whether the applicant gave a copy of the articles to the delegate, which would be 'material provided by' him, or whether he simply showed the articles to the delegate, on paper or on a device.

29    The applicant himself gives no evidence about having given the articles to the delegate and the articles were not otherwise in evidence before the Court. Thus the factual premise of his contention that there was jurisdictional error due to non-compliance with s 473CB of the Migration Act is doubtful.

30    The Minister also resists this proposed ground on the basis that the applicant's claim was based on the assumption that he would be detained at the airport in the first place, and the Authority did not accept that this would occur. As such, the claim about being injected was subsumed in findings of greater generality: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47].

31    It seems to me, however, that there is a good case for understanding the applicant to be claiming, as set out above, that he risked being injected if he were to be taken to a camp and detained there. If so, it would not be correct to infer that the Authority overlooked or disregarded that claim; the better inference may be that the claim was subsumed by the Authority's findings that it was very likely that the applicant would be detained for a short period at the airport, but the chances of him being mistreated or harmed were no more than remote. This casts further doubt on the merits of this proposed ground.

32    That may also provide a good answer to the applicant's s 473CB argument, if the applicant were to establish the relevant facts, because any jurisdictional error in not providing the tamilwin.com articles to the Authority would be unlikely to be material. The applicant has not put the articles into evidence, so with one qualification, any finding based on their possible content would be pure speculation. The qualification is that it can be inferred from discussion between the applicant and the delegate that at least one of the articles was about a death that occurred after a person was released from a camp. In any event, if the Court were to find, as suggested above, that the applicant's claim was that he would be injected if he were to be taken to a camp, where the Authority found that the chance that the applicant would be detained at such a camp was remote, any failure of the Secretary to give the Authority articles about the injection allegations could not have affected the result.

33    All in all, proposed ground 1 appears not to have substantial merit.

Proposed ground 2

34    Proposed ground 2 is:

2.    The learned primary judge erred in not finding that the second respondent constructively failed to exercise jurisdiction, or its decision was vitiated by unreasonableness in the reasoning process, in concluding that the appellant was or would be of no interest to the Sri Lankan authorities.

Particulars

2.1    The second respondent accepted that the appellant had been detained and tortured and 'may have been' questioned about his brother-in-law's (a senior LTTE officer) whereabouts and interrogated on suspicion of himself having links.

2.2    At [57] the second respondent assimilated the appellant's 'release' with being 'cleared of any LTTE connections', but the evidence was that the appellant was released from judicial custody upon his charge(s) of LTTE involvement being dismissed - and the appellant at interview had stated that he had, in effect, admitted under interrogation to being an LTTE member.

(LTTE stands for Liberation Tigers of Tamil Eelam.)

35    This proposed ground concerns a protection claim by the applicant which the Authority summarised as follows (at para 20):

On 13 December 1995, the Sri Lankan forces came to the area where the applicant was studying. He was arrested, taken to a camp, interrogated and tortured. He was kept there for a month and then handed over to the police and placed in the Batticaloa prison. He was detained for three months, during which he completed his Ordinary Level examination. He was taken to court but was released because they could not prove that he was an LTTE member. The applicant avoided travelling to Batticaloa after his release.

36    This is an accurate statement of the applicant's claims. In his Irregular Maritime Entry Interview form of 28 October 2012, the applicant was recorded as saying:

The CID people arrested me in 1995, at my place in [place name redacted], because they suspected me as LTTE while I was studying at school. I was held for 3 months in the CID office, Batticaloa. We went to court and they couldn't prove it and they let me out.

37    In the SHEV interview the applicant similarly confirmed the correctness of the following statement put to him by the interviewer:

Ok. Now, you say that after your exams you went to court, and they couldn't prove that you were associated with the LTTE and you were released.

38    The Authority dealt with that claim in the following passages:

27.    Considering that the applicant resided in an LTTE controlled area in the east of Sri Lanka, his Tamil ethnicity and the consistent and detailed presentation of his claims regarding his experiences in 1995 while completing his studies, I accept that the applicant was mistreated, harassed, interrogated by the security forces while traveling between his village and Batticaloa. I accept that he was detained as claimed in December 1995, brought before a court and released after he was found not [to] have had connections with the LTTE.

28.    The applicant claims that after this incident he did not travel to Batticaloa and his evidence does not suggest that he faced any further incidents or issues after he was cleared of having any connections with the LTTE.

…

57.    … While I accept that the applicant was detained and mistreated in 1995, he was released and cleared of having any LTTE connections. He was able to complete his studies, obtain employment with the University of Batticaloa and lead a union and engaged with the authorities to promote union members interests. While he faced pressure, threats and was detained and mistreated due to his failure to support the [Tamil Makkal Viduthalai Puligal (TMVP)] in gaining employment for their members and was forced to resign from his roles with the union and dismissed from the university, he was released after each detention, remained in his family home and continued his employment with the university until August 2011, after which he operated his own business. On the evidence before me, I am not satisfied that he was of ongoing interest to the authorities for the reasons claimed and I consider the chance of the applicant being detained and mistreated, if returned to Sri Lanka, to be no more than remote.

(Elsewhere the Authority described the TMVP as the political wing of a paramilitary body.)

39    At paragraph 62 the Authority repeated the characterisation of what had happened as the applicant having been 'detained and cleared of having any LTTE connections in 1995' adding that this was 'over 20 years ago' (the Authority's decision having been dated 1 April 2021).

40    The contention that the applicant had admitted to being an LTTE member comes from a passage in the transcript of the SHEV interview where, in the course of describing torture he says he experienced on the occasion in 1995 when he was detained, the applicant said:

I was beaten, they questioned me as to what kind of support I was providing for. And I was forced, I was supposed to admit to be a LTTE member. They asked me where my brother-in-law was, and my brother-in-law was a person in charge of certain areas. He used to come to our house and goes. And they wanted to know his whereabouts …

41    The applicant's first contention under this proposed ground is that the Authority assimilated his being released, because charges had not been proved, with being 'cleared' of all charges. They are not necessarily the same thing. But I doubt that reveals jurisdictional error; it may have simply been a colloquial use of language, less precise than one would expect of a lawyer trained to pay attention to where the onus of proof lies. It is trite that the Authority's reasons are not to be read with an eye attuned to the detection of error: Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 at 271-272.

42    It should, however, be acknowledged (while not raised by the applicant) that in paragraph 27 of its reasons reproduced above, the Authority also said that the applicant was found not to have had connections with the LTTE. That does seem to mischaracterise the applicant's evidence about what occurred, which was consistently to the effect that the charges could not be proved.

43    But it is also trite that the Authority's reasons are to be read as a whole, that the characterisation of a decision as legally unreasonable is not easily made, and that not every lapse of logic will give rise to jurisdictional error: see DWA17 v Minister for Immigration and Border Protection [2019] FCAFC 160; (2019) 272 FCR 152 at [53]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]; Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at [34]. Near the beginning of its reasons, the Authority correctly stated the applicant's claim in this regard, suggesting that it did not misunderstand the claim. The dispositive reasoning concerning that claim is at paragraph 57, also reproduced above. The material conclusion was that the Authority was not satisfied that the applicant was of ongoing interest to the authorities and that the chance that he would be detained and mistreated on return to Sri Lanka was remote.

44    It is plain that this conclusion was based, not just on the applicant's release and his having been 'cleared of LTTE connections'. It was also based on the facts that the applicant was able to complete his studies, obtain employment at the university, lead a union, and engage with the authorities to promote the union members' interests. It was also based on the facts that he was released multiple times after subsequent incidents of detention (apparently at the behest of the TVMP), that he remained in his family home, continued his employment at the university and operated his own business. The Authority's comment at paragraph 62 shows that it was also cognisant of the obvious fact that the incident in 1995 took place over 20 years before the time at which the Authority was deliberating (in fact, about 26 years).

45    All these matters contributed to the Authority's ultimate conclusion on this aspect of the applicant's claims. It seems unlikely that the Authority's misstatement of fact as to one of those matters rendered that conclusion illogical or otherwise legally unreasonable.

46    As to the submission that the applicant should have been understood to have said that under torture he admitted to LTTE membership, the passage from the SHEV interview reproduced above is simply too ambiguous to provide strong support for that contention. It appears to have been open to the Authority to follow the line of reasoning described above.

47    I do not discern any clear merit in proposed ground 2.

Proposed ground 3

48    Proposed ground 3 is:

1.    The learned primary judge erred in not finding that the second respondent constructively failed to exercise jurisdiction in reasoning, in effect, that the appellant's scarring did not heighten his risk or likelihood of being perceived to be an LTTE member, or unreasonably failed to consider whether to exercise the power under s 473DC(3) to obtain information about the appellant's scarring.

Particulars

3.1    At [58] the [Authority] purported to insubstantiate the significance of the appellant's scarring by confining its significance to whether or not it would be noticed at the airport only, whereas the appellant's claims to risk generally were not confined to the airport.

3.2    The second respondent's selection of a fragment of the UK Home Office report that 'a [i.e. one] CID officer' at the airport said that returnees were not checked for scarring was an unreasonably slender basis to insubstantiate the claim.

3.3    The significance and prominence of the scarring, and whether or not it was capable of being concealed at all, may have made the second respondent's [word missing] completely redundant, and the second respondent's failure to consider this anterior question vitiated the conclusion.

3.4    Nor did the Secretary give the country information or any statement or other material recording the contents of the material that the delegate expressly acknowledged at interview.

49    Paragraph 58 of the Authority's reasons is:

While not expressly claimed, I note that at the SHEV interview, the applicant made reference to having scars due to beating that he endured at the hands of the TMVP and the CID in Batticaloa. The applicant has not provided any evidence, such as a photo, of his scar nor has he made any specific submissions in this regard. However, I note that the 2019 DFAT report [footnote: DFAT, 'Country Information Report Sri Lanka', 4 November 2019, 20191104135244] refers to reports of an unidentified number of people having been detained in April or May 2009 because their scarring was deemed evidence of LTTE membership. The report also indicates that DFAT is unaware of more recent evidence of individuals being detained because of scarring. The 2020 UK Home Office report [footnote: UK Home Office, 'Report of a Home Office fact-finding mission to Sri Lanka', 20 January 2020, 20200123162928] also indicates that a CID officer at the airport confirmed that returnees were not checked for scarring at the airport. On the information before me and in considering the applicant's profile overall, I do not consider that there is a real chance the applicant would attract any adverse attention as a result of any scarring he may have if returned to Sri Lanka.

50    The applicant put the 2020 UK Home Office report into evidence. It contains the following three relevant paragraphs (footnotes removed - the 'FFT' is the Home Office's fact-finding mission team):

3.5    Scarring

3.5.1    A human rights activist told the FFT that he was unaware of anyone being singled out at the airport because of scarring. He also stated that if someone did have scarring the assumption would be that any scar is the result of fighting for the LTTE.

3.5.2    Representatives from [the United Nations Human Rights Commission] told the FFT that returning LTTE cadres would be checked for scarring and would likely lead to additional questioning although they were unsure of the reason for this but thought it might relate to the profile of the person.

3.5.3    A member of CID based at the airport told the FFT that no one is checked for scarring on their return.

51    I doubt that proposed ground 3 has any merit. It appears to challenge the merits of a factual conclusion the Authority reached that the applicant's scarring would not attract adverse attention if he were to return to Sri Lanka.

52    It is not clear why the applicant says that his claim was not linked to the airport only; as the Authority said, the claim was not made expressly at all. It seems, rather, that the Authority noticed that the applicant mentioned scarring in the SHEV interview, in the course of his account of being tortured in 1995. At that interview the applicant said: 'I was handcuffed - the handcuff was on for one month and the type of handcuff they use in Sri Lanka is the one with screw - there is a screw which pressed my wrist and there was 2 holes, hence the scars'. He also mentioned that he had scars after being beaten by the TMVP on a different occasion. But none of this rises to the level of a clearly articulated claim that can be said to inform 'the appellant's claims to risk generally'. The applicant made no claim to risk arising from his scarring at all.

53    The Authority's focus on the airport is, in any event, readily explicable in the context of the rest of its reasons, where it found that the applicant was unlikely to be of interest to the authorities on his return - save for the possibility of questioning and brief detention as a returned asylum seeker at the airport.

54    On the face of things, the country information on which the Authority chose to rely in order to assess any risk arising from scarring was a matter for the Authority: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]. Despite describing it as an 'unreasonably slender basis' for the Authority's conclusion, the applicant is not running a 'no evidence' ground, and nor could he. While the Authority only expressly referred to what was said at paragraph 3.5.3 of the 2020 UK Home Office report, its conclusion is also supported by the first sentence of paragraph 3.5.1 and by paragraph 3.5.2 (since the Authority clearly did not consider that the applicant would be identified at the airport as an 'LTTE cadre').

55    In all that context, it is highly doubtful that the Authority's omission to seek to interview or see the applicant to judge the extent of his scarring was legally unreasonable. There was no suggestion in the material before it that the scarring was extensive, or at least extensively visible while the applicant was clothed. The applicant submits that the Authority assumed that it was not visible, but it is at least equally possible that the Authority decided that the very limited material before it did not suggest that the scarring was extensive or otherwise prominent. The Authority's assessment of that limited material was within its proper purview.

56    More broadly, given the Authority's general view that the applicant was unlikely to receive close scrutiny from the authorities, it is unlikely that the Authority trespassed outside the bounds of reasonableness when it did not determine to interview the applicant to see the scarring for itself, or otherwise obtain a visual record of the scarring such as a photograph.

57    Proposed ground 3 does not appear to have merit.

Proposed ground 4

58    Proposed ground 4 is:

4.    The learned primary judge erred in not finding that the second respondent misconstrued or misapplied s 473DD in refusing to receive the 'new information' of the photograph of the appellant's brother-in-law standing with Prabhakaran.

Particulars

4.1    At [18] the second respondent reasoned that a photograph of the appellant's brother-in-law (KA) standing alongside LTTE leader Prabhakaran was credible personal information but was unsatisfied it could have affected the appellant's claims because the delegate accepted that KA was a senior member of the LTTE but the appellant's relationship with him did not give rise to the appellant having a high profile. Another reason was that the second respondent accepted that the photograph discloses nothing more than a relationship between KA and the LTTE.

4.2    The central theme in the second respondent's reasoning was the prominence of the appellant on the 'profile' spectrum, to which the proximity of the appellant with KA and Prabhakaran was obviously relevant. A photograph of the appellant's brother-in-law side-by-side with the leader of the LTTE was plainly relevant to an evaluation of where on the spectrum the appellant might be placed.

4.3    The second respondent's reasoning that the photograph was credible personal information but not capable of affecting the consideration of the claim because it accepted that 'KA had an association with the LTTE' effectively recognises that it was relevant. To reason that s 473DD(b)(ii) commands not receiving the photograph because of findings at the deliberative stage is an error.

59    The applicant's submissions make it clear that the proposed ground is based on this very last point. Citing the majority decision in AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90, he contends that the Authority 'inverted the proper reasoning process' by refusing to accept the photograph because the Authority had accepted 'at the deliberative stage' an association between the applicant's brother-in-law, KA, and the LTTE. In other words, the applicant submits that an assessment of the claim that KA was a senior member of the LTTE should have awaited the Authority's substantive consideration of the applicant's claims; the Authority is said to have erred by bringing that assessment into the anterior 'filtering' stage of deciding whether to receive the photograph as new information under s 473DD of the Migration Act.

60    The primary judge did make findings about the Authority's treatment of the photograph as new information, so although the applicant needs an extension of time, he would not need leave to advance this as a ground of appeal.

61    Nevertheless, I see no apparent merit in the proposed ground. The relevant paragraph of the Authority's reasons (para 18) need not be set out. The emphasis in that paragraph was not on the Authority's acceptance of the claim that KA had an association with the LTTE, but on the acceptance of the claim by the delegate of the Minister. In the main, the Authority reviewed the delegate's findings about KA's status as a senior member of the LTTE.

62    In doing so, the Authority was evaluating the likely impact of the photograph on the delegate's decision, in view of what the delegate had actually decided. That evaluation was relevant to the criterion for the receipt of new information in s 473DD(b)(ii) of the Migration Act as to whether the new information 'may have affected the consideration of the referred applicant's claims'. It is true that in the course of that evaluation, the Authority noted that like the delegate, it accepted the claim that KA had an association with the LTTE. But that was a brief aside which hardly supports a submission that, when the paragraph is considered as a whole, the Authority conducted its substantive review of the applicant's claims, and then used the conclusions it reached as a basis to exclude the photograph from consideration as new information, that having been the error identified in AZT22.

63    The applicant also submits that the significance of the photograph was much greater than to establish a mere association between KA and the LTTE. But assessing the significance of the photograph was a matter within the jurisdiction of the Authority, and the applicant does not submit that the Authority transgressed the limits of that jurisdiction as a result of illogicality or other unreasonableness.

64    There is no apparent merit in proposed ground 4.

Conclusion

65    The discretion to enlarge time in these circumstances is conferred in order for the Court to do justice between the parties. That means the Court must be satisfied that strict compliance with the rules will work an injustice upon the applicant: see Gallo v Dawson (1990) 93 ALR 479 at 480 (McHugh J).

66    I am not satisfied of that here. The applicant has failed to meet a time limit, which is in place so as to promote the significant public interest in the timely and effective disposal of litigation. And he has failed by a very wide margin. That failure has not been adequately explained. In the face of that, the merits of his proposed grounds of appeal are not so strong as to lead to a conclusion that it will be an injustice to shut him out of pursuing them. That is so even taking into account the grave consequences he claims to fear on his return to Sri Lanka.

67    The application for an extension of time to appeal from the Circuit Court's decision will be refused. The question of leave to advance new grounds thus falls away. Costs will follow the event.

Associate:

Dated:    7 August 2025