Federal Court of Australia

EOL17 v Minister for Immigration and Citizenship [2025] FCA 921

ORDERS

THE COURT ORDERS THAT:

1.    The name of the respondent be changed to “Minister for Immigration and Citizenship”.

2.    The application be dismissed.

3.    The applicant pay the respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

RAPER J:

1    The applicant is a citizen of Sri Lanka, who arrived in Australia by boat on 8 September 2012 as an unauthorised maritime arrival. Three years after his arrival, the applicant, on 16 December 2015, lodged an application for a Safe Haven Enterprise (Class XE) (subclass 790) visa. On 15 August 2017, the delegate of the Minister refused the application, pursuant to s 65 of the Migration Act 1958 (Cth). The delegate’s decision was referred to the former Immigration Assessment Authority, and on 26 September 2017, the Authority affirmed the delegate’s decision to refuse to grant the applicant a visa (IAA). The applicant then unsuccessfully applied for judicial review of the Authority’s decision before the then Federal Circuit Court of Australia. On 7 April 2020, the primary judge dismissed the applicant’s application: EOL17 v Minister for Immigration and Anor [2020] FCCA 691 (primary judgement or J).

2    The applicant applied to extend time to appeal the primary judgment before this Court on 22 July 2021. This matter was docketed to me in July 2025.

3    The issue for determination before this Court is whether time should be extended to allow the applicant to appeal the primary judgment.

4    For the reasons which follow, I refuse the applicant leave to extend time to appeal the primary judge’s decision.

Why the applicant’s application for leave to extend time must be refused

5    Pursuant to r 36.03 of the Federal Court Rules 2011 (Cth), a person wishing to appeal a decision must file a notice of appeal within 28 days after the date on which the judgment appealed from was pronounced or the order was made. Pursuant to r 36.05, if the appeal is not lodged within the time specified in r 36.03, a party must apply for an extension of time.

6    The decision of the primary judge was handed down on 7 April 2020, and these proceedings commenced on 12 July 2021, exceeding the prescribed time limit by 433 days (or 1 year, 2 months,1 week and 6 days).

7    As observed by Katzmann J in Tukala v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 74 at [40]–[42], the Court’s power to grant an extension of time is broad, but does not mean that the Court is “completely at large to do as it pleases”. Rather, the power must be exercised judicially and in accordance with the terms of s 37M of the Federal Court of Australia Act 1976 (Cth), in a way that best promotes the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. The overriding consideration is the interests of justice. Such leave will be granted where the delay is not lengthy, there has been a satisfactory explanation, consideration is given to the prejudice to the parties caused by the delay and the applicant has demonstrated that the prospective appeal has at least ostensible merit.

8    The applicant claimed that the delay could be explained for the reasons set out in his affidavit affirmed on 11 July 2021 asserting, amongst other things, that he had in fact “sent” his notice of appeal and application for fee exemption to the Court’s registry on 21 April 2020, along with his supporting documents but had not received a reply. The applicant then referred to other purported communications with the registry in February and June 2021. In response to the applicant’s claims, solicitors for the Minister sought copies of the documents evincing these communications and detailed the requests and the applicant’s responses in the affidavit of Mr Matthew Burnham, affirmed 9 July 2025.

9    The Minister submits that even if one were to accept that the applicant had in fact filed or “sent” his application to the Court in April 2020, no explanation was given for the delay between April 2020 and February 2021, and then between February and June 2021. In any event, the Minister submitted that the applicant has failed by his application to demonstrate that the prospective appeal has at least ostensible merit.

10    For the reasons which follow, it is my view that leave should be refused because of the latter: The applicant has failed to demonstrate that the prospective appeal has at least ostensible merit.

11    In the applicant’s draft notice of appeal attached to his supporting affidavit, the applicant stated that he appealed the whole of the primary judge’s decision and “still rel[ies] on the grounds and particulars being already stated in” his application for judicial review to the FCCA. The applicant filed no submissions in support of his application, despite orders being made requiring him to do so and repeated prompting from the Court.

12    It is not sufficient, when applying to extend time, to merely restate the unsuccessful grounds for review below. It is necessary that the notice of appeal articulate how the primary judge erred in making his or her decision.

13    In any event, I have undertaken a careful review of the amended application before the primary judge, the evidence before the primary judge and the primary judge’s reasons.

14    It is apparent from the applicant’s amended application, that the applicant agitated four grounds of review before the primary judge which are set out as follows:

1. Ground 1 [in accordance with Orders dated 16 August, 2018]:

The Authority committed jurisdictional error at (sic) it did not consider letters provided by the applicant in support of his claims [6].

Particulars.

a.    The letters from the police that was (sic) put to the Authority was important documents in support of his claims, it is submitted that the Authority did not consider the new information according to law (S 4730D).

2. Ground 2 [By leave in accordance with Orders dated 16 August, 2018 - out of time]:

The IAA committed jurisdictional error when it concluded there were 'significant' 'discrepancies' such that the IAA concluded the applicant fabricated his claims relating to LTTE involvement so as to create a profile upon which to apply for protection. [15]

Particulars of error

* The IAA considered the applicant's nomination of 1997 (entry interview) and subsequent nomination of 2002 (SHEV interview) as being the year when he underwent compulsory weapons training, when the applicant noted he had made an error in nominating 1997 (page 42/43 SHEV interview), yet this was not mentioned by the Authority;

* The applicant said in his statutory declaration that he 'was required to assist the LTTE after mid-2006 by digging bunkers, guarding sentry points from time to time, and he transported weapons (para 14 ); and then expanded on this in the SHEV interview by saying this occurred for 10 days a month from 2002 - 2007 (page 46 transcript). Apart from the dates being in conflict, there are no discrepancies contra the IAA finding, which in themselves would not support a finding of fabrication. Accordingly the IAA's conclusions were unreasonable and/or findings that no reasonable decision maker would have made.

Proposed New Grounds

3. Ground 3:

The IAA committed jurisdictional error when it concluded there were 'significant' 'discrepancies' such that the IAA concluded the applicant fabricated his claims relating to fishing so as to create a profile upon which to apply for protection. [16] and that, as a consequence, the IAA did not accept the applicant was required to report to the army camp a few months later at which time he was accused of helping the LTTE. [16] Accordingly the IAA's conclusions were unreasonable and/or findings that no reasonable decisionmaker would have made.

Particulars of error

* The IAA considered the applicant's statement in his statutory declaration that he was prevented for fishing for 5 days, and his later statement in the SHEV interview he was prevented for 10 days, were significant discrepancies

4. Ground 4:

The IAA erred when it did not accept the applicant's brother has been called into the army for questioning since 2011, and stated that 'The applicant mentioned this for the first time at the SHEV interview, after providing a detailed statutory declaration running for some 5 typewritten pages. If the applicant's brother had been called in for questioning I would expect the applicant to have regarded this as highly relevant and have raised it in his detailed statutory declaration.' ([17])

The IAA'S statement was incorrect in that the applicant had raised this before the SHEV interview.

Particulars

The applicant advised the Minister during one or more Screening interviews:

* page 29 of the SHEV interview

* The applicant now requires the Screening tapes

(Emphasis added).

15    As is apparent from these grounds, aside from ground one (which concerned whether the Authority ought accept new information that had not been before the delegate), the other three grounds sought to challenge adverse findings of fact, with respect to various events claimed by the applicant to be supportive of his claims for protection.

16    As stated above, the applicant has not articulated any basis as to how the primary judge erred, save for reagitating his unsuccessful grounds of review.

17    At hearing the applicant did not make any submissions in support of ground one but made the following general submissions, that appeared to relate to grounds two to four. The applicant submitted that he has problems with his memory and that “at every interview, [he has] always told that [he has] these memory issues”. In relation to the inconsistency in the applicant’s evidence regarding the duration and frequency of weapons training with the LTTE, the applicant referred to the 1997 date (with respect to ground two) and stated that he had memory issues. Further, he stated that there may have been inconsistency or confusion as “they” mixed up his evidence regarding the duration of training and the period of time during which he was not allowed to fish: He attended training for ten days, and he was not allowed to fish for five days. The applicant asserted that he had attended ten days’ training “every month”. It was his view that the Minister ought to have provided evidence regarding the Curtin interview, during which he says he first raised the claim about his brother. He submitted that he has only realised now, with a Tamil interpreter, that the allegations against him are that he has lied and when he has never, in the thirteen years he has been in Australia, been found to have lied or to have stolen anything.

18    With respect to the applicant’s new claim regarding his purported memory issues, there is no evidence that this has ever been raised before. A careful review of the Application Book, reveals that, on 10 September 2017, the applicant’s then representative provided submissions to the Authority on the applicant’s behalf, which addressed in part the delegate’s findings regarding the inconsistencies in his account. The submissions refer to case law addressing the question of consistency in asylum seekers’ testimony, which contemplates defects in memory, but did not raise any issues with the applicant’s own memory and did not purport to explain the inconsistencies in his evidence before the delegate by reference to the same. Even if the applicant’s capacity to give evidence was impacted by issues with his memory, as claimed, he was assisted at all material times by representation: during the SHEV interview, before the Authority and before the primary judge.

19    As to ground one, it is clear that the primary judge understood the thrust of the applicant’s challenge and considered whether the requirements of s 473DD of the Migration Act 1958 (Cth) had been met when the Authority had determined that it could not accept the new evidence (namely two letters claimed to have been written by police). Both decisions of the Authority and the primary judge predated the High Court’s decision in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494. In that decision, the plurality made clear that when determining whether the Authority was able to consider new information (not before the delegate at the time of making the decision under review), the Authority was required to first consider whether the requirements of either s 473DD(b)(i) (that the new information was not and could not have been provided to the Minister) or (ii) (was credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims) were met. If neither of the criteria had been met, the Authority was prohibited from taking the new information into account and therefore the criterion specified in s 473DD(a) (that the Authority was satisfied that there were exceptional circumstances to justify considering the new information) was redundant. However, if both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met: AUS17 at [11].

20    The Authority was not satisfied that the material was credible personal material (given it was not on official letterhead and it was implausible that the authorities would have an interest in the applicant five years after his departure from Sri Lanka) and therefore was not satisfied that the criterion under s 473DD(b)(ii) was satisfied. The Authority then went on to consider the criteria under s 473DD(b)(i) and accepted that the applicant “may have been unable to provide these documents prior to the delegate’s decision” appearing to be satisfied of the s 473DD(b)(i) criteria and then went on to consider and not be satisfied that there were exceptional circumstances justifying consideration being given to the material. There is no discernible error in this approach, as it accords with the holding in AUS17. Whilst the primary judge referred, in error, to authority which preceded AUS17, no error, evidencing an exercise of power inconsistent with AUS17, attended the decision the primary judge was tasked to review.

21    With respect to grounds two, three and four, they each concern essentially disagreement with the Authority’s adverse findings of fact with respect to three events relied upon by the applicant in support of his claim for protection, namely with respect to his claim as to his involvement with the LTTE, as to his claims regarding whether he was impeded by the army or the navy from fishing (because he would not assist them) and as to claims regarding his brother.

22    The Authority dismissed each of the allegations on the basis of inconsistencies and discrepancies between the applicant’s accounts, demonstrated from information, variously provided upon entry, for the purpose of the SHEV (as contained in the application prepared by his migration agent and his statutory declaration, again when represented), then his subsequent SHEV interview. Subsequently, the applicant relied upon affidavit evidence before the primary judge seeking to explain the alleged inconsistencies.

23    As observed by the Full Court in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 216 FCR 83 per Kenny, Griffiths and Mortimer JJ at [23], a decision-maker is entitled to rely upon inconsistencies in assessing a visa applicant’s credibility where such a process is conducted fairly and reasonably, taking into account that the assessment of the reliability, and credibility, of accounts given by asylum seekers is well recognised as involving a number of particular features and considerations, and calls for a careful and thoughtful approach.

24    Consistent with the task required of the Authority (and later the primary judge) upon review, appropriate attention was required to be given to all relevant material in making a finding of inconsistency which underpins an adverse credibility assessment: AVQ15 at [26].

25    From my own review of all the material, it is apparent from the reasons of the Authority, and as considered by the primary judge, that attention was given to all the relevant material.

26    As to ground two, a challenge was directed at the Authority’s finding, at IAA[15], that there were “significant” discrepancies in the applicant’s evidence in relation to his claim that he underwent weapons training with the LTTE in Sri Lanka. The Authority referred to the inconsistency of claims as to the year and frequency of the purported training as between the entry interview, the SHEV statutory declaration and the SHEV interview. As stated above, a decision-maker is required to determine the veracity of a person’s claims and must grapple with whether to accept or reject them. Account can be taken of inconsistencies so long as account is taken of all the evidence, and that the process leading to that evidence was fair and reasonable and that the conclusions are not legally unreasonable or illogical. It is evident that there were marked differences in claims as between each of the occasions when the applicant referred to the LTTE training, not only by reference to the years, but to the duration and frequency. This occurred where the applicant was represented by a migration agent, who assisted him in the preparation of his SHEV application and statutory declaration and also where the applicant was represented before the primary judge. The primary judge acknowledged that the applicant relied upon additional evidence before the FCCA seeking to challenge the recording of the statement he was alleged to have made in his entry interview, namely that he had not said in answer to Question 8b in his entry interview, that the training was in “1997”, but instead said “from 2002 to 2007”: J[28].

27    I can discern no error in the primary judge’s reasons. As the primary judge found, the Authority was required to consider the review material by force of s 473DB(1) and to form a view as to whether it was satisfied that the applicant’s claims and evidence had been made out. It was open, given the number of inconsistences, for the Authority not to accept the applicant’s evidence. These were not insignificant inconsistencies, and the Authority was entitled to rely upon them in rejecting the applicant’s claim: J[30]. Further, it was open for the primary judge to reject the additional affidavit evidence that was put before him as to the assertion that the applicant did not say in his entry interview that “1997” was the year he undertook the training where there was no reliable evidence to support the assertion: J[31].

28    Ground three concerned the Authority’s findings that the applicant had fabricated his claims regarding being prevented from fishing by the army or the navy or acceding to their requests for assistance: IAA[16]. The Authority rejected this claim because of inconsistencies between the applicant’s claims as to the time period in which he was prevented from fishing (being five or ten days) as claimed in his SHEV application statutory declaration and then in his SHEV interview. I accept the primary judge’s characterisation of this claim, as being impermissible merits review, and that it was open for the Authority (on the basis of all of the evidence before it) to decide as it did. To the extent that the applicant submitted before me at hearing that there was confusion about whether it was five or ten days because of his ten day period claims relating to the LTTE training, I do not accept that there was such confusion. The applicant’s statutory declaration, when he was represented by a migration agent, referred to him not being able “to go out to sea for 5 days” and his SHEV interview referred to him being so precluded for ten days.

29    Ground four concerned another integer of the applicant’s claims in support of a need for protection that related to his brother having been called into the army camp and being questioned since 2011. The Authority rejected this claim on the basis of the recency of making this claim. The applicant made no reference to it upon arrival nor as part of his application for the SHEV nor in his statutory declaration but only mentioned it during his SHEV interview. The applicant sought to rely upon evidence before the FCCA that he did in fact refer to the fact of his brother being intermittently called for questioning by the CID during a lengthy interview at Curtin detention centre. He recalled that he was interviewed “several times” whilst at Curtin detention centre. It was a matter for the primary judge to determine, on the balance of probabilities, whether this had in fact occurred. No illogicality nor unreasonableness arose nor was asserted. The primary judge did not accept the applicant’s evidence given there was no independent evidence to substantiate the claims and where the Minister had exhausted searches (in answer to a subpoena) that there was no documentary evidence to support the applicant’s claim that he had participated in any interview apart from the biodata interview, the arrival interview and the SHEV interview (with respect to the two former interviews, there was no evidence that the claim regarding his brother had been made).

30    It was open for the primary judge to make this finding.

31    For these reasons, the application to extend time to appeal must be dismissed with costs.

Associate:

Dated:    11 August 2025